Blizzard Stomps Bnetd in DMCA Case

sold down the river by jacquesm · 2004-10-02 06:01 · Score: 2, Informative

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.

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MP3 Search Engine

Re:sold down the river by Anonymous Coward · 2004-10-02 06:05 · Score: 5, Insightful

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!
Re:sold down the river by jacquesm · 2004-10-02 06:11 · Score: 1

guess what, I wasn't complaining, just extrapolating from current data.

Also, in fact I *am* doing something to make things better. But it will probably not be enough.

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MP3 Search Engine
Re:sold down the river by Elektroschock · 2004-10-02 06:30 · Score: 2, Informative

Well they are not strong enough. What is more important is to interfere in early stage of consulatations, see upcoming EU-consultations.

Alea iacta est. The only thing they can win is to stop it. Only lobbying as the industry does can help to defend our interests.
Re:sold down the river by Anonymous Coward · 2004-10-02 06:42 · Score: 5, Interesting

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:sold down the river by TheGreek · 2004-10-02 06:55 · Score: 1, Insightful

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.
Re:sold down the river by f8free · 2004-10-02 07:09 · Score: 5, Insightful

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.
Re:sold down the river by KDR_11k · 2004-10-02 07:41 · Score: 1

So you disagree with the assumption that it won't get better if you don't do anything? Because that's what you just called naive. While doing something isn't guranteed to work, doing nothing is guranteed not to work.

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Justice is the sheep getting arrested while an impartial judge declares the vote void.
Re:sold down the river by whiteranger99x · 2004-10-02 07:53 · Score: 1

Because playing a video game is more important than world wars.

Wrong. That isn't the point the parent was making, although you would like to claim it was. The point is, if you don't like what the fuck is going on, do something to change it, don't just bitch about it.

But hey, nice troll there.

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Join the TWIT army now!
Re:sold down the river by MBraynard · 2004-10-02 12:28 · Score: 1

Well, nothing. Nor is eating Hot Pockets. A friend of mine recently told me about the new Hot Pocket Ultras that are low carb and high in protein that I will have to check out.
Oh - back to your story - I was just trying to paint a picture and for some reason the Skinny Puppy reference has just the right imagery and social cache for the moment.
Re:sold down the river by Sj0 · 2004-10-02 17:28 · Score: 3, Insightful

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.

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It's been a long time.
Re:sold down the river by KDR_11k · 2004-10-02 23:42 · Score: 1

So because you believe we can't change anything for the better we shouldn't even try? Don't you think it's exactly this kind of thinking that makes the general public ignore important issues and not act upon them?

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Justice is the sheep getting arrested while an impartial judge declares the vote void.
Re:sold down the river by Boronx · 2004-10-03 20:08 · Score: 1

Well, we ain't dead yet, and the future's coming whether we want it to or not.

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Play Command HQ online
Re:sold down the river by stanmann · 2004-10-05 02:03 · Score: 1

So you believe in pollution? which is less than half as bad as a generation ago.

Overpopulation when we have sufficient resources for over 30B people to live on this planet.

Dwindling energy reserves when we have enough oil for another 50 years assuming population increases at the rate it has over the last 100 years and over 100 if it stabilizes as it appears to be doing.

We will begin commercial exploitation of space and population excursions within the next 50 years.

Don't believe the hype. And if you do, stop driving, give away your TV and computer(s) and live from dawn til dusk.

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Food not Bombs is a nice platitude but it breaks down when you notice that the Bombees are usually well fed
Re:sold down the river by stanmann · 2004-10-05 02:07 · Score: 1

arable land fish and wood are ALL renewable resources.

Oh you hypocrite, wanting me to give up the things I like when you are using your computer to post on slashdot and sucking up those finite resources.

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Food not Bombs is a nice platitude but it breaks down when you notice that the Bombees are usually well fed

Bad wording... by vspazv · 2004-10-02 06:05 · Score: 1, Insightful

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?

Well, we wanted a ruling on EULA's by nurb432 · 2004-10-02 06:06 · Score: 5, Interesting

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

Joy Joy.

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

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---- Booth was a patriot ----

Re:Well, we wanted a ruling on EULA's by bnenning · 2004-10-02 06:12 · Score: 3, Insightful

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".

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How to solve most of our problems: 1.Lots of nuclear plants. 2.Cure aging.
Re:Well, we wanted a ruling on EULA's by pjt33 · 2004-10-02 06:13 · Score: 1

Sure, but the question has always been whether shrinkwrap EULAs are contracts, given that their model of offer-and-acceptance differs hugely from that of all other contracts.
Re:Well, we wanted a ruling on EULA's by rogabean · 2004-10-02 06:15 · Score: 1

I'm replying to this post...

oops...

checks in the mail.

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"why don't you just slip into something more comfortable...like a coma!"
Re:Well, we wanted a ruling on EULA's by OverlordQ · 2004-10-02 06:19 · Score: 2, Insightful

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?

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Your hair look like poop, Bob! - Wanker.
Re:Well, we wanted a ruling on EULA's by Curunir_wolf · 2004-10-02 06:21 · Score: 5, Insightful

This is one of the most frightening rulings I have seen, WRT software licensing, etc. The judge pretty much get Blizzard a pass on everything.
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.

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"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Re:Well, we wanted a ruling on EULA's by offpath3 · 2004-10-02 06:28 · Score: 1

Software which you *already* own through your purchase *before* clicking the EULA.
Re:Well, we wanted a ruling on EULA's by gcaseye6677 · 2004-10-02 06:37 · Score: 4, Interesting

The EFF, or other concerned groups, needs to set something like this up. Form a corporation who releases a software product with an insane licensing agreement (you give up your first born, etc.) then have people buy the software. Try to enforce the agreement, and have these people sue. The court must either decide that all EULAs are OK no matter how ridiculous, or case law will be established which limits how far a software company can go. OK, maybe they shouldn't really ask for the first born, but a large sum of money instead. Or some severe usage restrictions. If nothing else, it would be a very uncomfortable decision for a judge to make approving something like this, so it would be quite likely that we would see some restrictions finally put in place.
Re:Well, we wanted a ruling on EULA's by Rinikusu · 2004-10-02 06:41 · Score: 1

I'm wondering that if the court's position is that a customer can reject a EULA and return said software, then if a customer were to be refused a refund by the retailer if that customer could now sue the shit out of that retailer based upon the findings of this case. Someone must be able to refund the customer's money, whether it be Blizzard or the retailer.

The dismissal of the right of first sale kills me, though. Imagine if we now stuck EULA's on everything, not just software. Buy a music CD, inside the case is a EULA agreeing to not copy, rip, or play on an unauthorized device, and the stores begin a policy to not accept opened CD's back. Or even more insidious would be EULA's on, say, beef that state that customers buying the beef will not sue the beef packing plants if they contract e. coli, or mad cow. (The question is, can you slap a EULA on such a consumable? Or clothing? Or plumbing supplies?)

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If you were me, you'd be good lookin'. - six string samurai
Re:Well, we wanted a ruling on EULA's by Anonymous Coward · 2004-10-02 06:44 · Score: 3, Insightful

Step 1) Write virus. Step 2) Insert EULA into virus. Step 3) ??? Step 4) Profit. I for one welcome your new EULA overlords
Re:Well, we wanted a ruling on EULA's by nightfire-unique · 2004-10-02 06:50 · Score: 4, Informative

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.
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.

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A government is a body of people notably ungoverned - AC
Re:Well, we wanted a ruling on EULA's by timmyf2371 · 2004-10-02 06:58 · Score: 1

That's exactly what a contract is though - it's an agreement between two parties: the software vendor and the licensee (user).
In return for you agreeing to follow the terms of the contract, you gain access to use the software sold to you.

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Backup not found: (A)bort (R)etry (P)anic
Re:Well, we wanted a ruling on EULA's by Dunedain · 2004-10-02 07:03 · Score: 1

They actually do give you something, in the Blizzard EULAs: they give you the right to make copies and use them for Spawned games. That is consideration -- otherwise you'd have to spend $100 for five more licenses to play a local multiplayer game.

Also, the Battle.net TOS gives you access to battle.net mode in the games, which is also worth something.

This will probably be used as precedent to allow future EULAs, but the Blizzard versions actually do have consideration, and that's an important element in the judge's ruling.

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-- Brian T. Sniffen
Re:Well, we wanted a ruling on EULA's by hattig · 2004-10-02 07:05 · Score: 1

Your American laws are retarded.

Do you have any concept of "Consumer Protection" at all?

In the UK, if the EULA/T&Cs can't be read in plain English by someone, i.e., no lawyer speak, then they are practically unenforceable for consumer (not Business however, Business Contracts are binding regardless of the level of lawyerspk) transactions. Also if they take away unreasonable rights of the user, they are unenforceabe (you know the joke about Your first born child, etc, but you get the point).

However you have to consider that if Company released a Product that depends on a (pay for) Service that Company provides, and then someone bypasses the Service aspect, thus getting cheap Product that they can use, that the Company would be pretty pissed off about it all. Still, the Company is to blame, other Companies sell Product with a Minimum Fixed Term Contract for their Services, and this is where Blizzard messed up in my view.

Or should we make law a mandatory subject in school, 4 hours a week from the age of 5 up to 18? We could have a planet of lawyers then. No products though, because we'd all be lawyers, not creators, doctors, artists, cleaners, etc!
Re:Well, we wanted a ruling on EULA's by nightfire-unique · 2004-10-02 07:24 · Score: 1

No, but 4 years of Canadian law as an elective. :)
Anyway, in re-reading what I wrote I realized I could have phrased some things better.. it's not entirely correct that they're offering to re-buy the software from you.. a refund *is* different and is taxed differently... and a few other inaccuracies, but on the whole, as far as I know, it's legally sound.

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A government is a body of people notably ungoverned - AC
Re:Well, we wanted a ruling on EULA's by Vlion · 2004-10-02 07:44 · Score: 1

Uhm, the licences usually say "If you disagree, stop now and return the software for a refund". If you press the point, you can get your money back. (probably through spending waaaay more than the $50, but hey...)

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/b
|f(x)dx = F(b) - F(a)
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Re:Well, we wanted a ruling on EULA's by gl4ss · 2004-10-02 07:52 · Score: 3, Insightful

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

only in nations allowing slavery.

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world was created 5 seconds before this post as it is.
Re:Well, we wanted a ruling on EULA's by Anonymous Coward · 2004-10-02 07:54 · Score: 2, Informative

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.
Re:Well, we wanted a ruling on EULA's by Jane_Dozey · 2004-10-02 08:09 · Score: 1

How about legal ownership of all the users assets (house, car, money, etc)? Ridiculous enough to get the law changed, but not as bad as demanding somebodies first born child ;)

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Silly rabbit
Re:Well, we wanted a ruling on EULA's by Curunir_wolf · 2004-10-02 08:24 · Score: 1

However you have to consider that if Company released a Product that depends on a (pay for) Service that Company provides, and then someone bypasses the Service aspect, thus getting cheap Product that they can use, that the Company would be pretty pissed off about it all.
The bizarre aspect of this case is that Battle.net (the service in contention) is *NOT* a pay-for service. Blizzard offers it for free. So there is NO revenue loss to them if someone else is offering a similar free service.
They are suing because they think that since they can't double-check the copy protection scheme on their software (bnetd tried to implement this, but Blizzard refused to work with them), that there will be more people pirating the software.

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"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Re:Well, we wanted a ruling on EULA's by onyxruby · 2004-10-02 08:40 · Score: 1

You cant always do this you know. Here in my state of Minnesota (US) you cannot return a title that has been opened for a refund. Nor may you return it for exchange. You may return a title that has been opened for the exact same title only. This is by state law that the retailers refer to when shafting the customer. The retailers were the ones who bought the law in the first place of course.
Re:Well, we wanted a ruling on EULA's by cpt+kangarooski · 2004-10-02 08:44 · Score: 1

Actually, there've been rulings on EULAs for years. In fact, the ProCD case is stronger than this one (also holding that they're generally enforcable) as it was a circuit decision, not a mere district opinion.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:Well, we wanted a ruling on EULA's by dontbgay · 2004-10-02 08:47 · Score: 1

uhmmmmmm.. isn't that spyware?

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Sig not found.
Re:Well, we wanted a ruling on EULA's by myowntrueself · 2004-10-02 08:50 · Score: 1

Sometimes I think that the yanks should just ask Canada to annex them; they would be a *lot* better off.

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In the free world the media isn't government run; the government is media run.
Re:Well, we wanted a ruling on EULA's by Have+Blue · 2004-10-02 09:15 · Score: 2, Insightful

Isn't gaming the courts like this illegal?
Re:Well, we wanted a ruling on EULA's by kfx · 2004-10-02 09:19 · Score: 1

Spawning has not been supported since Starcraft, and even then, a spawned copy does not require a disc to run.
Re:Well, we wanted a ruling on EULA's by AndroidCat · 2004-10-02 09:21 · Score: 1

How can they prove that I read the EULA and agreed to it, or just bypassed it? And what if I have a child of five install it for me?

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One line blog. I hear that they're called Twitters now.
Re:Well, we wanted a ruling on EULA's by Jameth · 2004-10-02 09:46 · Score: 1

Has there been a ruling on that, or is that just the way that it is obviously meant to be?

According to law in the USA, that's obviously the way it is meant to be, but look where we are now.
Re:Well, we wanted a ruling on EULA's by The+Only+Druid · 2004-10-02 09:49 · Score: 1

Uh, no. The ability of individuals to contract between each other [as protected by the 10th amendment's empowering of the individual states] specifically prohibits slavery [or more accurately, involuntary servitude] while priviliging the waiving of other rights (such as right to access, etc.).

You're just taking an extreme example which has repeatedly been discussed in court [and codified by law] and making it out to be representative of the situation. You're being inflammatory (hear me mods?) and doing so without contributing anything to the conversation.

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"Stumble before you crawl"
Re:Well, we wanted a ruling on EULA's by AaronGTurner · 2004-10-02 10:42 · Score: 1

Been saying all along you CAN waive rights via agreement of a contract.
This only applies in the USA, though. In the UK, for example, you can't sign away your rights so easily. This having been said, we have fewer fair-use rights here in the first place.
Re:Well, we wanted a ruling on EULA's by ricotest · 2004-10-02 10:44 · Score: 1

I can't think of another convenient way to prove that the vast majority of users don't read EULAs. If Blizzard can enter in any clauses it likes into the EULA and rely on users not bothering to read it, the EFF company should be able to add similar clauses to theirs.
Re:Well, we wanted a ruling on EULA's by Anonymous Coward · 2004-10-02 11:54 · Score: 1, Interesting

"Has there been a ruling on that, or is that just the way that it is obviously meant to be?"

That's the way it is in all capitalist societies since time immemorial for all forms of produce. For some reason however, in the current day, computer software is viewed as something special and thusly, deserving of different laws.

All novel technolgies go through this legalistic process -- the parties with an interest in the control of said product petition the lawmakers of the country to grant them special favours. Normally the judges and politicians see the absurdity of these protestations and act accordingly in the favour of the public. However, the computer industry (by accident or design, I'm not sure which) has managed to stay the day of reckoning until now; a coincidence which is significant once one acknowledges that the computer industry is now worth billions of dollars. If this battle had been fought as recently as ten years ago, the outcome would no doubt have been very different; the software companies unable to afford the asking price for special consideration from the legal system.

"According to law in the USA, that's obviously the way it is meant to be, but look where we are now."

Of course that's how it's meant to be. However, it doesn't help that Bush was "elected" in 2000. Please consider your vote in November and remove the incumbant tub of lard and replace him with the donkey shaped tub of butter. Neither are much use beyond improvised sexual lubricant, but butter tastes better than lard.

Now. Who can argue with logic like that.
Re:Well, we wanted a ruling on EULA's by gl4ss · 2004-10-02 12:15 · Score: 1

yes i'm trolling a bit. by saying that if you can waive personal rights just like that then you _are_ in slavery.

you see, in some countries you can't waive certain rights away because it essentially makes slavery possible(like if your work contract prohibits you from working to anyone in your field if you leave... usa doens't really go that far on the field of _preservering_ personal freedoms).

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world was created 5 seconds before this post as it is.
Re:Well, we wanted a ruling on EULA's by Alsee · 2004-10-02 12:23 · Score: 1

I would like to see what would have happened had these guys actively avoided/declined the EULA. Code up a loader program that patches or bypasses the installer. You just directly install it, or you click "I decline" and install it.

It takes some effort, but it rips the rug out from under the entire EULA argument. If you do not actually AGREE to the End User Licence AGREEMENT then no contract if formed and NOTHING in the EULA applies at all. At that point you are legitimately intalling and running your purchase, which is explicitly legal under copyright law section 117.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Well, we wanted a ruling on EULA's by abb3w · 2004-10-02 12:50 · Score: 1

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.
It's not very well publicized by most software makers for obvious reasons, and policies may have changed in the last few years. But refunds direct from the manufacturer are often possible.
About two years ago, I picked up a piece of software from Staples. For one reason or another, I found the package thoroughly unsatisfactory. Can't remember whether it was incompatibility, an unacceptable EULA, or the software just plain sucked. I brought it back, Staples reiterated the open box policy, and said I needed to contact the manufacturer for a refund. When I did so, the maker listened to my problem, tried to resolve the problem, and when they couldn't, provided me a RMA number and shipping address. No major fuss involved. I sent them the software and a copy of my receipt. I got a check for the purchase price-- leaving me out about six bucks for shipping expenses. Eh.
It would be nice, but not realistic, to have gotten my shipping expenses back, too. I suspect most manufacturers have similar (unpublicized)policies. I also suspect that if it was because of a EULA refusal (or if you bought direct from the manufacturer's website), you could probably make yourself politely obnoxious, and either get the shipping costs refunded, or grounds for a case in small claims court. (And, since you refused the EULA, you can probably choose a local venue.) But you'll probably need to talk to a lawyer-- and IANAL.
So yes, it may not be possible to get the refund from the end vendor, but it may still be practically possible to get a refund directly from the manufacturer-- leaving Blizzard's statement accurate. Has anyone else tried getting a refund from various software makers in the last two years?

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//Information does not want to be free; it wants to breed.
Re:Well, we wanted a ruling on EULA's by Tony+Hoyle · 2004-10-02 12:58 · Score: 1

Since this ruling means there aren't any at all any more in the US we're ahead on that score :)
Re:Well, we wanted a ruling on EULA's by Matt2k · 2004-10-02 13:00 · Score: 1

> Form a corporation who releases a software product with an insane licensing agreement (you give up your first born, etc.) then have people buy the software. Try to enforce the agreement, and have these people sue.

Your heart is in the right place, however if a portion of a contract is deemed "Unfair", under a reasonably vague set of guidelines, than that part of the contract becomes null. It doesn't lessen the legal weight of the act of the contract itself.

So in this case, giving up your firstborn would be determined to be unreasonable, it wouldn't effect the legal status of the EULA itself.
Re:Well, we wanted a ruling on EULA's by YU+Nicks+NE+Way · 2004-10-02 15:57 · Score: 1

Unfortunately, you're making the same error many people make. You are free to keep the CD -- I hear that they make fine drink coasters, and the Martha Stewart is planning a segment on creative uses of them in her "How to cover your tracks when you really need to" special -- which should start filming in, oh, about...five months. That doesn't mean you're free to use the software that's stored on it; that requires you to accept the terms of a contract. That's been the justification for click-through EULAs world-wide, and it's why the EFF lost this round, and will lose follow-ups, too.
Re:Well, we wanted a ruling on EULA's by Sj0 · 2004-10-02 18:13 · Score: 1

Bush/Cheney 2004 despite zealots telling me otherwise.

Do what you want, but do it for the right reasons. The consequences of many of the treaties this administration has ducked out of have started to come about, such as the weaponizaation of space by the three powers. Americas debt grows at the largest rate in history. Soldiers are dying for a war that at one point could have been justified(but WASN'T), and at this point is just a financial sinkhole which has left a thousand US soldiers dead. Internationally (even on this continent alone), we're seen as something far worse than we were four years ago. The dollar continues to dive.

If you're going to vote for those two, if the continual impulsive mistakes of that vain ex drug addict turned "born again" christian and the back room dealings of his conniving running mate don't bother you, or they're superceded by some more important agenda in your view, that's fine. Just don't vote for them to spite the people who have been paying attention and don't nessesarily like what they see.

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It's been a long time.
Re:Well, we wanted a ruling on EULA's by Xenographic · 2004-10-02 18:45 · Score: 2, Interesting

Courts only have jurisdiction over "cases and controversies" -- this means that they cannot just issue advisory oppinions about what might or might not hypothetically be legal, there has to be some real controversy over it.

In other words, if they saw through the scam, they'd say that it wasn't really a controversy, and throw it out of court because they had no jurisdiction over it. Mind you, IANAL, so I don't know if they'd do anything else to you for trying to game the court like that, but I can at least say that they'd toss it out of court.

Sadly, the rest of the schemes I'm seeing mentioned would also be unhelpful. Yes, you could try to make your own crazy contracts, but the court gets to decide *which* contracts it wants to find "unconscionable." So they can say that merely because it's click-thru, we don't find it unconscionable, but instead because you attached it to a virus, or just mailed it to the software company. Mind you, they seem to be finding that clicking that "okay" (or designating some agent to do that for you--your kids, a friend, a company, etc.--the fact that YOU asked them to makes them an agent of yourself here), you actually enter into these crazy contracts.

Alas, the only one I remember being found "unconscionable" was one where you couldn't benchmark or review it without prior consent. IIRC, it was in the EULA of some A/V product... I can understand why they might want that, to avoid misleading claims of which product kills more viruses or whatever, but it was still a terrible clause, and I seem to remember it running afoul of the 1st ammendment (thankfully, some rights are *inalienable* -- you cannot contract yourself into slavery, for example).

So, sadly, this court is apparently too shortsighted to see that its ruling could kill reverse engineering (what product will allow it save by oversight?). All I can say is that I hope for a more savvy court on appeal.

Frankly, I wish the courts would make certain rights with respect to software *inalienable* so that we don't have to put up with EULAs trying to steal them from us. I'm sure that reverse engineering and making the software product interoperate with the other software should be on the shortlist of inalienable computer rights, though there are probably others...
Re:Well, we wanted a ruling on EULA's by vxvxvxvx · 2004-10-02 22:08 · Score: 1

You can waive them, though the question would be does a EULA constitute a contract in the first place?
Re:Well, we wanted a ruling on EULA's by green+menace · 2004-10-03 03:36 · Score: 1

You are free to keep the CD

I don't know if what you are saying is true, but it should not be legal to sell a CD with data on it for $50 and say later, if you don't agree to X, Y, and Z, then you just paid $50 for a CD, and you can't use the data. You are paying for the data, the CD should be considered part of packaging. Also, this doesn't consider cases where you pay to download the software from a company, therefore having no CD. You know damn well that you would not pay $50 for a cd with mystery data on it that may or may not be useful to you.

I think most here agree that it isn't acceptable to add an agreement after the purchase. Legal or not, it is wrong and should be changed to protect consumers. If it remains "legal" to do so, it should be mandatory that all retailers accept returns on products when the consumer does not accept the EULA. The retailer should then be able to exchange the open copies for new ones from the manufacturer. That should be the price companies pay for trying to enforce an agreement made after the purchase, or an agreement made at purchase in which the terms of the agreement were not yet stated.
Re:Well, we wanted a ruling on EULA's by YU+Nicks+NE+Way · 2004-10-03 04:51 · Score: 1

I don't know if what you are saying is true, but it should not be legal to sell a CD with data on it for $50 and say later, if you don't agree to X, Y, and Z, then you just paid $50 for a CD, and you can't use the data.
Sorry, but the distinction between an object and its content is what copyright is all about. If I buy a script and score for a musical, I can't perform the musical in public without permission of the copyright holder. I can't do as I like with the content of a book without permission of a copyright holder. That's exactly what copyright is designed to enforce.
Re:Well, we wanted a ruling on EULA's by MindStalker · 2004-10-03 08:02 · Score: 1

The though of Elephant lard just came to mind, and I think I'm going to go join the Democrat party now.
Re:Well, we wanted a ruling on EULA's by OrangeTide · 2004-10-03 08:25 · Score: 1

I managed to install other software packages without clinking "I Accept" before. Usually it involves using stuff to pull the cabs out of installshield and installing them by hand. Some software is not so picky about registry entries. And sometimes you can just find the reg entries on forums where people are diagnosing some unrelated problem. It would be really easy for companies to stop this sort of work around if it became popular though.

We should all buy a copy of Blizzard's software and then demand a refund when we see the EULA. Or possibly post a way to install it without clicking Accept. That would certainly make an appeals case easier.

--
“Common sense is not so common.” — Voltaire
Re:Well, we wanted a ruling on EULA's by green+menace · 2004-10-03 16:22 · Score: 1

Sorry, but the distinction between an object and its content is what copyright is all about. If I buy a script and score for a musical, I can't perform the musical in public without permission of the copyright holder. I can't do as I like with the content of a book without permission of a copyright holder. That's exactly what copyright is designed to enforce.

I have no problem with copyrights, but what I am saying is that EULA should either accesible before the purchase or you should be able to get a full refund. To quote myself "You are paying for the data, the CD should be considered part of packaging." I agree entirely that the object and the content are two different things. I pay for the content, not the cd. The EULA applies to the use of the content. My point is that I should be able to agree with conditions the EULA's X,Y,& Z before purchase or be allowed to return the item.

If I buy a script and score for a musical, I can't perform the musical in public without permission of the copyright holder.

The script/score does not contain a set of rules that you have to agree to after purchasing the score. You know the deal before you buy it, whereas a sealed box of software does not give you that right(oops... almost said luxury..). The two situations are not comparable. If Blizzard wants to impose the EULA from hell, I would probably still buy it and respect the EULA provided I knew what it was prior to purchase. So, to clarify: My problem is not with the terms of the EULA, but the way in which it is presented.
Re:Well, we wanted a ruling on EULA's by Pofy · 2004-10-05 20:45 · Score: 1

>Uhm, the licences usually say "If you disagree,
> stop now and return the software for a refund".

But if you don't agree to it, it is quite irrelevant what it says, right?
Re:Well, we wanted a ruling on EULA's by Pofy · 2004-10-05 20:49 · Score: 1

In addition to installing files and updating the registry, you also need to insert the cd-key in the proper form into the correct mpq file. Of course, such a thing is possible through third party programs that can access mpq file archieves so no big deal really.
Re:Well, we wanted a ruling on EULA's by RyanK · 2004-10-06 05:46 · Score: 1

(thankfully, some rights are *inalienable* -- you cannot contract yourself into slavery, for example)

You sure about that? We have an unlimited right to contract, and that includes the right to forfeit our rights.

If what you say is true, it would be unenforceable to sign a non-disclosure agreement, as you are giving up your first ammendment rights to free speech.

How different is slavery from some long term service contract? Take for example the Military (or any agreement in the private sector if you like). You enlist and you're on board until they discharge you. You go where they tell you and do what they say. In return they feed you and give you a place to live. You may be at risk and asked to do some dangerous things, but you don't have a say in the matter. Sure, you can run away, but they will come after you for breaking the terms of your contract.

(and, before i get accused of saying slavery is not a bad thing, the problem arises when it treats people as property. Essentially, slaves were treated like animals and their offspring belonged to their owners.)

Re:Plain Engrish? by Anonymous Coward · 2004-10-02 06:06 · Score: 5, Funny

It's a press statement by Blizzard that says "Don't buy our products!".

Right of First Sale in 2001 by gregfortune · 2004-10-02 06:07 · Score: 4, Informative

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?

Re:Right of First Sale in 2001 by rpdillon · 2004-10-02 08:00 · Score: 4, Interesting

OK, I just got back from reading the entire ruling. The point you bring up is probably the most interesting part of the whole decision. The court concluded that right of first sale did not apply because Blizzard never sold the software - they sold a license to use it. Therefore, since there was no "sale", it canot apply.

This really pisses me off, but I'll try to stay cool. The problem is obvious: what the hell does right of first sale apply to if not copyrighted computer games?? This was the main point in the decision that didnt make sense to me - and I wonder how it got written in that way. In my book, if I pay $50 to play a game, that's a sale. The court is essentially saying I paid for the license, not the game, so therefore right of first sale only applies to the license itself, not the game.

It is quite interesting, because if right of first sale would then, using this *same, exact* logic prohibit the right of console game buyers to "sell back" or "trade in" games at a game store without the express consent of the game manufacturer. Most people may not know this (I didn't), but it is right of first sale that allows people to do what they want (more or less) with their copy of a work, like a CD, console game or PC game (like sell it back without having to get the consent of the game publisher). The fact that right of first sale specifically deals with this issue and the court said it was irrelevent seems a bit suspect to me.

If you care about this stuff, the finding is actually quite readable, and at 36 pages (double spaced) I read the whole thing in about 20 minutes.
Re:Right of First Sale in 2001 by irc.goatse.cx+troll · 2004-10-02 08:38 · Score: 1

So what they're selling you is a license that you don't get to read until after you buy it, but what they're advertising is a game. Couldn't you bring them up on false advertisement? (IANAL)

--
Pain lasts, kid. Its how you know you're alive. Sometimes I think this growing up thing is just pain management-TheMaxx
Re:Right of First Sale in 2001 by ttyp · 2004-10-02 10:16 · Score: 1

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?
Not that I know of. But the distinguishing feature between Softman and this case is that these defendants assented to the EULA terms while Softman didn't.
Softman was accused by Adobe of violating the EULA when Softman basically bought boxed sets of Adobe software and repackaged the CD's individually. That is, they opened the boxed set, removed the disks and resold them. They didn't install the software first and click "I agree." What the Softman ruling says is, there's no EULA contract until both parties agree. Agreement is signified on the part of the user by clicking through the EULA. But since these guys did "Agree" to the EULA, there's a contract, or so this court says.
Re:Right of First Sale in 2001 by gregfortune · 2004-10-02 12:24 · Score: 1

Good point. I got too deep into the 2001 ruling and forgot what the /. blurb said ;) Bummer deal that EULA style contracts were validated :(
Re:Right of First Sale in 2001 by Alsee · 2004-10-02 12:32 · Score: 2, Insightful

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.
Re:Right of First Sale in 2001 by 3.1415926535 · 2004-10-03 08:33 · Score: 2, Interesting

The Court's argument as to why the first sale doctrine doesn't apply is complete, utter crap (in my opinion -- IANAL). The judge references U.S.C. 117(b), using it to say that copies of computer programs can't be resold without the copyright holder's permission, but if you go and actually read that section, it clearly only covers "backup copies".

The Court then goes on to use the EULA (which is under dispute) to decide that the defendants agreed that the software was licensed. Grr.
Re:Right of First Sale in 2001 by bedessen · 2004-10-06 12:03 · Score: 1

Right of first sale applies to physical property that you own. That includes the CD, manual, box, etc. You do not own the software itself, you are granted a license to use it. You're free to sell the physical property all you want but that does not mean you also own the intellectual property.

When you buy a book, it does not mean you own the right to the text - you can't go print off more copies and sell them, or make derivative works based on the characters or plot.

When you buy sheet music, you own the physical printed copy, not the rights to the song itself.

When you buy software you own the physical CD and packaging, not the actual program itself, which is licensed. It sucks, but that's the way it is. Trying to apply the right of first sale to something that you don't own is going about it the wrong way.

This is wonderful news! by NDPTAL85 · 2004-10-02 06:08 · Score: 5, Funny

Yay our favorite game company won!

Now the boycott on them can end! Enough of those pesky morals and ethics. I mean they make AWESOME video games. No one's gonna remember your sacrifice against a game company. So GAME ON!

WOOO HOOO!

--
Mac OS X and Windows XP working side by side to fight back the night.

Re:This is wonderful news! by analog_line · 2004-10-02 09:24 · Score: 1

No one's gonna remember your sacrifice against a game company.

The truest statement yet posted in this entire thread.
Re:This is wonderful news! by Tooxs · 2004-10-02 12:43 · Score: 1

No it's not, at least one person I know of will remember. And that person up until now has spent quite a bit of money with Blizzard on himself and others.

Take your selfdefeating attitude and shove it.
Re:This is wonderful news! by analog_line · 2004-10-03 04:00 · Score: 1

Take your selfdefeating attitude and shove it.

Self defeating? That would have to mean I'm in conflict with myself. Aiming for martyrdom just gets you killed, not marytred. Especially for something as ultimately useless as a video game.

Besides, Blizzard is only one head of the hydra.
Re:This is wonderful news! by mattgreen · 2004-10-03 04:43 · Score: 1

Yes, I'm sure Blizzard worries about the wrath of the vengeful Slashdotter. They might receive a nasty email...that is, if said Slashdotter finishes compiling his Gentoo install and cleaning up his parents basement.

Seriously though, I know a guy at Blizzard, and they just laugh at Slashdot in general. My boss has the same attitude toward this site. Can't say I blame them.
Re:This is wonderful news! by NDPTAL85 · 2004-10-04 11:23 · Score: 1

Its a video game. Not a civil rights issue. No one is going to care about who boycotted a game company or not. You will not go down in the history books. Children will not revere your legend. All you are doing is hurting yourself by not enjoying the products from a very skilled game creator. Slashdotters really do take themselves too seriously sometimes.

--
Mac OS X and Windows XP working side by side to fight back the night.

This is bad. by Breakfast+Pants · 2004-10-02 06:08 · Score: 5, Interesting

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.

--

--

WHO ATE MY BREAKFAST PANTS?

Re:This is bad. by vspazv · 2004-10-02 06:10 · Score: 1

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.

I'd say its time to buy stock in headphone companies.
Re:This is bad. by Breakfast+Pants · 2004-10-02 06:22 · Score: 2, Insightful

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?
Re:This is bad. by AeroIllini · 2004-10-02 06:51 · Score: 4, Interesting

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.

The Hypothetical:

Me: Hi. I'd like to purchase this CD.
Clerk: Ok. That will be $14.50.

**money changes hands**

Clerk: Now, before you can take this home, the policy of this CD's publisher is that you sign a contract agreeing to their terms.
Me: Ok, let me read the contract.
Clerk: It's included with the liner notes.

**I open the CD and pull out the contract**

Contract: CDMusic Publishing, Inc. (hereafter referred to as the "licenser") licenses this music to be listened to by the buyer (hereafter referred to as the "licensee"). The licensee may not alter, copy, resell, give away, or otherwise do anything with this recording. The music belongs solely to the copyright holder, and the licensee waives all rights to listen to this music, except on a player manufactured by CDMusic Publishing, Inc., using headphones manufactured by CDMusic Publishing, Inc. at a volume that would not allow non-licensees to hear the music. All other use is prohibited by this contract.
Sign: ____________________________
Initial: ________
Date: ___________

Me: I don't like this contract. It doesn't give me any Fair Use rights. I want my money back.
Clerk: I'm sorry, sir. Store policy does not allow me to give refunds on opened CDs.

The uselessness of the EULA, seen with a different product, comes into sharp focus.

--
For security, the MD5 hash of this message and sig is 09f911029d74e35bd84156c5635688c0.
Re:This is bad. by Sloppy · 2004-10-02 06:59 · Score: 1

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.
That actually wouldn't be so bad!! At least then, you would know, at the time you spent the money, what you were getting into. There would be a contract in the traditional sense.

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:This is bad. by Breakfast+Pants · 2004-10-02 07:14 · Score: 1

Read my clarification for a little better analogy to software EULAs. I didn't go into enough detail to show what I was really getting at in my original post.

--

--

WHO ATE MY BREAKFAST PANTS?
Re:This is bad. by Yolegoman · 2004-10-02 07:44 · Score: 2, Funny

Contract: CDMusic Publishing, Inc. (hereafter referred to as the "licenser") licenses this CD to be used as a coffee coaster by the buyer (hereafter referred to as the "licensee"). The licensee may not listen to, alter, copy, resell, give away, or otherwise do anything with this recording. The CD belongs solely to the copyright holder, and the licensee waives all rights to listen to this music, including on a player manufactured by CDMusic Publishing, Inc., using headphones manufactured by CDMusic Publishing, Inc. at a volume that would not allow non-licensees to hear the music. All other use, asides the already stated "Coffee Coaster" clause, is prohibited by this contract.
Sign: ____________________________
Initial: ________
Date: ___________

- Yolego
Re:This is bad. by WindBourne · 2004-10-02 07:48 · Score: 1

Actually, I was thinking that it might be fun to do this. Hit the store AND the software company. I suspect if compUSA or Microcenter or Best Buy were to be hit up with a number of +1K lawsuits for smaller companies, that they would either quite carrying them or would insist on a switch on the EULA.

--
I prefer the "u" in honour as it seems to be missing these days.
Re:This is bad. by Frank+T.+Lofaro+Jr. · 2004-10-02 07:52 · Score: 1

They don't need a EULA for that. US Copyright law (US Code, title 17) prohibits "performing" a work (i.e. letting others listen to it) without permission.

--
Just because it CAN be done, doesn't mean it should!
Re:This is bad. by Breakfast+Pants · 2004-10-02 08:10 · Score: 1

Nice to see you mention title 17. Since you are so familiar with it I am surprized you don't know about some common exemptions present in chapter motherfucking ONE of that title:

110. Limitations on exclusive rights: Exemption of certain performances and displays

(5)

(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless--

(i) a direct charge is made to see or hear the transmission; or

(ii) the transmission thus received is further transmitted to the public;

--

--

WHO ATE MY BREAKFAST PANTS?
Re:This is bad. by greggman · 2004-10-02 08:12 · Score: 1, Redundant

So don't buy CDs that don't put their conditions in plain wording on the outside of the package.

Nobody put a gun to your head and made you buy the CD.
Re:This is bad. by Anonymous Coward · 2004-10-02 08:44 · Score: 2, Interesting

Slippery slope. If EULAs are enforcable on CDs, then who's to say they won't start putting them on food? "By eating this loaf of bread, you agree not to hold BreadCorp liable for any food poisoning or other ailments contracted as a result." (The said EULA being placed in a plastic capsule at the center of the loaf.)

What would you say then? "So don't buy bread that doesn't put its conditions in plain wording on the outside of the package. Nobody put a gun to your head and made you buy food." ...?

Unreasonable is unreasonable, unfair is unfair, and wrong is wrong. Whether it deals with a luxury or a necessity, this sort of licensing is wrong. It's days like this I'm glad I live in a country with better consumer protection laws than that mess down south you presumably call home...
Re:This is bad. by greggman · 2004-10-02 11:13 · Score: 1

There are hundreds of thousands of bread makers in the world. Do you really think that if one of them had a bread EULA that people would still by bread from them?

The slippery slope is advocating the government make choices for you instead of chosing yourself. If you don't agree with the EULA or you don't like the fact some companies don't put their EULAs on the outside of their packages then exercize your power and don't buy their product.
Re:This is bad. by asdfghjklqwertyuiop · 2004-10-02 13:14 · Score: 1

So don't buy CDs that don't put their conditions in plain wording on the outside of the package.

Nobody put a gun to your head and made you buy the CD.

Or just go ahead and use your newly acquired property without agreeing to the license. You don't need to enter into contracts to use things you already own.
Re:This is bad. by davecb · 2004-10-02 13:14 · Score: 1

I think the offer and acceptance has not been made in this case,and that you should arrest the clerk for fraud. Or maybe theft (;-))
--dave (ask a U.S. lawyer) c-b

--
davecb@spamcop.net

for those of us who value fair use backups... by Anonymous Coward · 2004-10-02 06:08 · Score: 5, Interesting

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

Re:for those of us who value fair use backups... by Siniset · 2004-10-02 06:23 · Score: 4, Insightful

that's a really good question... i was going to mod you up, but then realized i had lost my mod points... :(
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.
Re:for those of us who value fair use backups... by dmayle · 2004-10-02 06:35 · Score: 1

...would it be legal to make backups of the software BEFORE agreeing to the EULA?
Bravo! Thanks, Anonymous Coward. This is exactly why the whole idea of a EULA is ridiculous. If it's the click that generates the acceptance, than people will just start making tools to extract the software without running any install code. (I've actually seen tools that do this already in limited circumstances.)

And if they're binding before we've actually clicked, then we've got a precedent whereby you can be party to a contract without having ever actually seen it.

EULA's have got to stop. They just make no sense, and could possibly be damaging for so many reasons.
Re:for those of us who value fair use backups... by ScrewMaster · 2004-10-02 06:39 · Score: 4, Interesting

I think the problem is that the word "sign" doesn't have the meaning that it used to. At no time in the past twenty-five years of purchasing software have I ever been required to "sign" anything. As in taking up a writing instrument and putting my signature upon a piece of paper. The whole point of "signing" a contract was that a. it verified that you agreed to the terms of the contract and b. provided undeniable evidence that you had done so. This whole shrinkwrap/clickwrap/EULA nonsense is so unbelievably offensive that it just makes you want to find your nearest lawmaker / judge / corporate attorney and throw up in his lap.

There might be a business opportunity for a company that could provide insurance for people that want to buy software. Call it proxy-licensing. You pay a yearly premium to the insurance company, and whenever you buy a new piece of software one of their representatives (known as an "opener") stops by and deshrinkwraps the package for you. If it should be discovered, upon installation, that a clickthrough license is required, he or she would provide that service as well. That way you're off the hook (I mean, hey, you didn't open the box and you didn't click anything) and if the software vendor chooses to sue, the insurance company takes care of it for you.

P.S. that was a joke but it makes about as much sense as anything else on this subject.

--
The higher the technology, the sharper that two-edged sword.
Re:for those of us who value fair use backups... by 7-Vodka · 2004-10-02 07:06 · Score: 4, Interesting

more importantly, what happens if you don't use the installer that came on the cd to install the software?
That way you never get to see, much less agree to a eula and yet you have the software installed and running.

--
Liberty.
Re:for those of us who value fair use backups... by Anonymous Coward · 2004-10-02 07:42 · Score: 1, Interesting

Or just get some 10 year old kid to do it(or anybody 0-17 years old). Since (at least in the US is true, and based and what I have seen so far this is the case) they are under 18 it can't be legally binding.
Re:for those of us who value fair use backups... by kapplepc · 2004-10-02 07:52 · Score: 1

You could go one step further and modify the installer before running it to change the agree button to a disagree button. You might even write a program that makes the disagree appear on top of the agree button.
Re:for those of us who value fair use backups... by Cynikal · 2004-10-02 09:11 · Score: 2, Interesting

thats a little far fetched, but it begs the question that if you werent the person to install and agree to the eula, are you bound by it? i could EASILY have my wife install all my software and agree to the eulas, while i use the software and be able to claim i never saw or agreed to any eula and thus am not bound to it.
Re:for those of us who value fair use backups... by analog_line · 2004-10-02 09:41 · Score: 1

If it's the click that generates the acceptance, than people will just start making tools to extract the software without running any install code. (I've actually seen tools that do this already in limited circumstances.)

I've seen games that do this. Prime example being the Linux client for Neverwinter Nights. Following these instructions, given to me by the copyright holder no less, I installed Neverwinter Nights on my Linux system without EVER being prompted with an End User License Agreement. This includes both of the expansions. I wasn't required to agree to anything before I downloaded any of the packages either.
Re:for those of us who value fair use backups... by paynter · 2004-10-02 10:03 · Score: 2, Insightful

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.
Re:for those of us who value fair use backups... by Cynikal · 2004-10-02 10:09 · Score: 1

i dont believe i've ever seen anything about letting anyone use the computer its installed on, and plus she can claim ignorance about the fact that im using her computer without her permission..

but better than that, i noticed another post here about having a 12 year old install your software, and thus all contracts are not binding as a minor cannot enter into a legal contract.. sounds like the best work around i know of yet...

maybe bnetd should hire a minor to be the project developer
Re:for those of us who value fair use backups... by ScrewMaster · 2004-10-02 10:45 · Score: 1

Well, that will only last until they stick a couple of lines in the EULA saying that if a minor installs it the software cannot be used, period. Or something like that. But that's okay ... if such a stupid company really wants to keep paying customers from actually using their product they'll go out of business that much sooner.

--
The higher the technology, the sharper that two-edged sword.
Re:for those of us who value fair use backups... by Tim+C · 2004-10-02 11:31 · Score: 1

Quote from the Microsoft Windows XP Professional EULA:

"By installing, copying, downloading, accessing or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA."

Emphasis mine.

This EULA says that if you use the software, you must agree to the terms of the EULA. This decision says that EULAs are binding. Therefore, whether you click the "I Agree" button or not, if you use XP, you're bound by the EULA, at least in the jurisdiction of the court that made this ruling.

--
It's official. Most of you are morons.
Re:for those of us who value fair use backups... by jordie · 2004-10-02 11:40 · Score: 1

Exactly! Now someone go out and get me a crack for the installation file, so I don't HAVE to agree to the EULA. :>
Re:for those of us who value fair use backups... by Cynikal · 2004-10-02 11:40 · Score: 1

good point, and i would so love to challenge that specific part in court and have a real court ruling clearly stating that someone can be bound to an agreement they never agreed to or saw or perhaps even heard of, because as a software developer myself i can make tons of cash on that ruling with just a little bit of creativity.

furthermore if i can click an "i aggree" button and bind other people who arent even present to the agreement, i promise you i will rule the planet in a matter of months :D
Re:for those of us who value fair use backups... by FauxReal · 2004-10-02 15:14 · Score: 1

What if you have children open the packages and install the software for you? I would assume that minors aren't allowed to enter into legally binding contracts due to thier "innocence/ ignorance/ inability to make decisions of this magnitude?

--
Deltron 3030 - Virus (music video)
Re:for those of us who value fair use backups... by Lehk228 · 2004-10-02 17:13 · Score: 1

stick a couple of lines in the EULA saying that if a minor installs it the software cannot be used, period. Or something like that. But that's okay

and this condition is enforced through what contract? the same one that is voidable at any time at no consequence by the minor.

--
Snowden and Manning are heroes.
Re:for those of us who value fair use backups... by Eric119 · 2004-10-02 17:41 · Score: 1

I have no idea how this could be legally valid. How on earth can anyone state that performing some arbitrary action (open the shrinkwrap, click the "I agree" button, etc.) causes you to agree to an arbitrary set of conditions? It's total nonsense, or by reading this sentence you just agreed to give me $20000 in exchange for a broken pencil.
Re:for those of us who value fair use backups... by arkhan_jg · 2004-10-02 20:59 · Score: 1

You pay a yearly premium to the insurance company, and whenever you buy a new piece of software one of their representatives (known as an "opener") stops by and deshrinkwraps the package for you.

I have a cheaper solution. I could just go nextdoor and get my 8 year old neighbour to install any software. He's too young to legally enter a contract. He can't be bound by it's terms, and I didn't see the contract, let alone agree to it.

Alternatively, I'll just buy a cat, and leave it alone with my keyboard whenever I get to that stage of installation. I'd like to see them take my cat to court for contract violation...

--
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.
Re:for those of us who value fair use backups... by Bios_Hakr · 2004-10-03 05:36 · Score: 1

So, let your 3-year-old neghbor install it. Let's see the publisher sue a minor who cannot be bound to a contract.

--
I'd rather you do it wrong, than for me to have to do it at all.
Re:for those of us who value fair use backups... by Dyolf+Knip · 2004-10-03 11:54 · Score: 1

In that case it gets even better! There's screenshots floating around of flight arrival/departure displays in airports running windows and BSOD-ing, right? Doesn't looking at the screen and extracting useful information from it qualify as using? If not, why not? If so, then wouldn't MS essentially be getting an implicit contract with every single person who walks by and glances at the screen? Does every person who uses an ATM implicitly agree to the same contract that the bank signed with Diebold (or whoever sold it to them)?
This is as bad as that TV exec who claimed that not watching commercials was illegal because by receiving the signals you implicitly agreed to be advertised to.

--
Dyolf Knip
Re:for those of us who value fair use backups... by Macgrrl · 2004-10-03 13:16 · Score: 1

As I understand it, in Australia you have to be 18 years old or older to enter into any legally bound contract. I have heard people joke about getting students on their summer holidays to install software for large corporations so that they could honestly say that no one from their copany had legallya ccted the terms of a software license.

--
Sara
Designer, Gamer, Macgrrl in an XP World
Re:for those of us who value fair use backups... by paynter · 2004-10-06 15:21 · Score: 1

The music companies have been suing minors over filesharing, haven't they? Or is that (serious question) somehow different?

Given the cost of defending a lawsuit of this type, suing (say) the parents with no case seems just as effective as suing them with a strong case. Even if the hypothetical 3-year-old's parents have a rock-solid defense, someone still has to bear the cost of making that defense. Suing, even if you're sure to lose in court, is probably profitable.

Yes... by AtOMiCNebula · 2004-10-02 06:09 · Score: 3, Insightful

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.

It can be.. by nurb432 · 2004-10-02 06:09 · Score: 1

If the copyright holder of windows forbids it..

It might be stupid, but they could do it legally...

They already restrict what you can create legally with their development tools ( you cant create a competing product for example )

--
---- Booth was a patriot ----

Re:It can be.. by ebyrob · 2004-10-02 10:31 · Score: 1

They already restrict what you can create legally with their development tools ( you cant create a competing product for example )

And what so many folks here seem to be forgetting is that none of that has ever held up in court. When was the last time someone got sued for trying to compile portions of the gcc with VS6?
Re:It can be.. by Zorilla · 2004-10-02 15:09 · Score: 2, Funny

If the copyright holder of windows forbids it..

It might be stupid, but they could do it legally...

It really isn't anything to worry about. Remember? Developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers, developers....Woooooooooo!

--

It would be cool if it didn't suck.

Thanks for letting us know!!.. by arhar · 2004-10-02 06:10 · Score: 5, Funny

The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good.

Thanks for letting us know who the good guys are! I can never figure out who's right or wrong myself, and I like it when I can count on Slashdot telling me that.

Re: Thanks for letting us know!!.. by myc_lykaon · 2004-10-02 07:07 · Score: 1

versus a schmuck in a wheelchair who was willing to kill 400,000 of his countrymen
Note: Dr Strangelove was not real
More seriously, which World War 2 were you at? I don't seem to remember the one with lesbians. Perhaps you were looking at the Russ Meyer - Debbie does Berlin version.
Re:Thanks for letting us know!!.. by _Sprocket_ · 2004-10-02 07:11 · Score: 1

Thanks for letting us know who the good guys are! I can never figure out who's right or wrong myself, and I like it when I can count on Slashdot telling me that.

Oh, come on. You already decided who was right and wrong. You're just annoyed to find out you were wrong yourself.

I understand your frustration. Nobody likes to be wrong. But hey - "Slashdot" told you what to think so what're you going to do? Disagree?

Oh. Along those lines. You need to open a PayPal account, charge it up $4,352.00 USD, and then make a payment to sprocket@example.com. I know, I know. You probably didn't expect this and feel some reluctance. But this is "Slashdot" telling you what to do after all.

Er...whoops. by AtOMiCNebula · 2004-10-02 06:11 · Score: 1

Didn't mean to double post, but that's what I get for not RTFA-ing. After reading the article, I think that the EFF is just overstating things a bit, trying to make a point that this is what the court ruling *could* mean.

I'll read the article first next time, I promise!

Re:Er...whoops. by brianosaurus · 2004-10-02 06:19 · Score: 5, Insightful

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
Re:Er...whoops. by jacobdp · 2004-10-02 07:28 · Score: 1

Next thing you know, your iPod will only work with iTunes.
GNUpod.
Re:Er...whoops. by damiam · 2004-10-02 08:01 · Score: 2, Informative

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.
Re:Er...whoops. by Fancia · 2004-10-02 08:30 · Score: 1

And you evidently missed the point. With this ruling, Apple can now sue EphPod and GtkPod or any other *Pod out of existence.
Why? They're beneficial to Apple, since they don't make money from the iTunes software (which they give away for free) but from the sale of iPod hardware. I'm certain that Apple's happy with GTKPod, because of which I own an iPod to use with Linux.

--

Bít, zabít, jen proto, ze su liska!
Re:Er...whoops. by Fancia · 2004-10-02 14:59 · Score: 2, Informative

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!
Re:Er...whoops. by brianosaurus · 2004-10-03 09:32 · Score: 1

My attempt at humor has been proven wrong. :)

But didn't Apple give Real some grief when they made their product iPod compatible?

--
blog

I expected something else from Blizzard by Plaeroma · 2004-10-02 06:11 · Score: 1

I have to say this it not something I'd expect coming from Blizzard. I know they are just trying to stop the (rampant) piracy of their games, but this is has implications that extend well beyond that. Sad to see.

Re:I expected something else from Blizzard by 0x0d0a · 2004-10-02 07:13 · Score: 1

Why? Blizzard is part of Viviendi. They are not small, cute and fluffy. They are big, nasty, and unpleasant. It's exactly what I'd expect. If Google's motto is "don't be evil", Viviendi's is the exact opposite.

--
May we never see th
Re:I expected something else from Blizzard by juhaz · 2004-10-03 10:05 · Score: 1

Huh? It's not like they pulled this off from thin air yesterday, it's been going on for years.

Seems to me to be a bit... *duh* by Anonymous Coward · 2004-10-02 06:12 · Score: 5, Insightful

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.

Re:Seems to me to be a bit... *duh* by TCaM · 2004-10-02 06:23 · Score: 3, Informative

Most stores have a no return policy these days for open software.
Re:Seems to me to be a bit... *duh* by runderwo · 2004-10-02 06:33 · Score: 2, Informative

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
Re:Seems to me to be a bit... *duh* by stubear · 2004-10-02 06:40 · Score: 3, Informative

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.
Re:Seems to me to be a bit... *duh* by bigbadwlf · 2004-10-02 06:42 · Score: 1

Why the hell didn't the EFF bring in videotape showing someone trying to return WC3 because he didn't agree with the EULA? That should have ended that "contract" bullshit right there, unless the judge is bought.

Anyone in Ontario got a video camera? I'll totally go buy Warcraft III and then attempt to return it opened. I think it'd be damned interesting to see what they do with a camera in their face.
Re:Seems to me to be a bit... *duh* by entrigant · 2004-10-02 06:59 · Score: 1

s/Whala/Voila/g
Re:Seems to me to be a bit... *duh* by Sloppy · 2004-10-02 07:05 · Score: 2, Insightful

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're being silly. A pirate wouldn't concern himself with whether or not the EULA is enforcable, because he has already decided to violate something much sturdier and well-proven than EULAs: copyright law.
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.
Sure, a better solution. But up until today, everyone thought that an even better solution than that, was to just not agree to the EULA, and then go ahead and install the software anyway, but bound by the terms of copyright law instead of the terms of the EULA.

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:Seems to me to be a bit... *duh* by Electrum · 2004-10-02 07:16 · Score: 1

Most stores have a no return policy these days for open software.

That's why you should always make purchases with your Visa card. Tell them the product is defective and you want a refund, otherwise you are going to charge it back. You will almost certainly get your refund. If not, charge it back.
Re:Seems to me to be a bit... *duh* by ShawnDoc · 2004-10-02 07:28 · Score: 3, Informative

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.
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.
Re:Seems to me to be a bit... *duh* by ShawnDoc · 2004-10-02 07:32 · Score: 1

I'll totally go buy Warcraft III and then attempt to return it opened. I think it'd be damned interesting to see what they do with a camera in their face.
Most stores have a policy banning the operation of a camera within them. If they see the camera they will most likely ask you to leave and come back in without the camera.
You've got to be sneaky and hide the camera in a hat or purse or something.
What I think is funny is that the reason stores don't accept software returns is because the software publishers make that part of the contract the retailer has to sign if he wants to sell their software. Then these same software distributors go to court saying someone can return the software if they don't like the EULA, knowing full well that they don't allow the retailers to accept returns.
Re:Seems to me to be a bit... *duh* by runderwo · 2004-10-02 07:34 · Score: 1

By continuing to install the software after a modified EULA, they are implicitly agreeing to the changes. If they didn't want you to modify the EULA, they should checksum it and refuse to install otherwise. The current model is just like you crossing stuff out and handing the contract to them, and then they sign it without paying any attention to what you crossed out. Is their lack of vigilance supposed to be my problem?

--
LRC, the best-read libertarian site on the web
Re:Seems to me to be a bit... *duh* by nolen · 2004-10-02 07:55 · Score: 1

I mean don't you think that it's pretty pathetic to trade your self respect in order to play WoW?

Sounds like a fair trade to me. Have you played WoW?
Re:Seems to me to be a bit... *duh* by mortuus · 2004-10-02 08:41 · Score: 1

If enough people returned opened software to their place of purchase complaining about the EULA, we may really see some change in the way that software is sold. The odd person doing this won't make much difference, but if many people caused a fuss about this we might see some action.

Tomorrow I will go to my local retail chain and buy some software. I will open it, run the installer and disagree with the EULA. I will take it back. I will bitch about it. If they don't accept the return, I will bitch about it even more.

I call upon other slashdot readers to do the same. The purchase could just be the cheapest reduced budget software. It doesn't matter. It is a small thing to do, which could have a larger effect.
Re:Seems to me to be a bit... *duh* by Class+Act+Dynamo · 2004-10-02 11:04 · Score: 1

Wouldn't it be great if we on Slashdot, or the wider internet nerd community, could organize something like this. We all set a day to go buy some piece of agreed upon software; then, we all try to return it at an agreed upon time after reading the EULA and not agreeing. We could make some noise that way! Plus, we could get some press about it so that maybe some people not likely to normally hear about this kind of thing get to see how ridiculous it is.

--
My other computer is a Jacquard loom.
Re:Seems to me to be a bit... *duh* by ahrenritter · 2004-10-02 12:02 · Score: 1

The problem I have with this reasoning is that less than one percent of Blizzard's users are concerned with things like bnetd, fair use, and first sale. So the loss of these few people would not be enough to make Blizzard about-face the way you describe. The ninety-nine percent of their common users would continue clicking through on the EULA and our rights will continue to deteriorate. By the time the common masses realize that they don't have the rights they expect or desire anymore, there will be a long history of cases establishing the right of the manufacturer over the end user.

--

All I wanted was a rock to wind a piece of string around, and I ended up with the biggest ball of twine in Minnesota
Re:Seems to me to be a bit... *duh* by Vash_066 · 2004-10-02 17:54 · Score: 1

No they will not if they do agree to take it back for some odd reason then they will only exhange it for what you had before. When I worked for Best Buy this was store policy. Then my soul returned and I quit.
Re:Seems to me to be a bit... *duh* by Vash_066 · 2004-10-02 18:02 · Score: 1

Hell anyone in Indiana wanna do this? I can get a cam.....
Re:Seems to me to be a bit... *duh* by Royoken · 2004-10-04 02:20 · Score: 1

I mean don't you think that it's pretty pathetic to trade your self respect in order to play WoW?
I would say the people that spent entire weeks farming items and experience points have already traded in their self respect.

Re:Plain Engrish? by brianosaurus · 2004-10-02 06:12 · Score: 5, Interesting

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.

--
blog

Appeal by RAMMS+EIN · 2004-10-02 06:16 · Score: 1

Ok, so the EFF is going to appeal the ruling. They have had some success in the past, but how can they win here? I am sure the bnetd guys already brought forward most if not all of the important arguments, yet the judge ruled against them.

What did they do wrong anyway? Adding value to Blizzard's games?

--
Please correct me if I got my facts wrong.

Re:Appeal by Anonymous Coward · 2004-10-02 06:25 · Score: 1, Informative

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
Re:Appeal by the+unbeliever · 2004-10-02 06:28 · Score: 1

bnetd doesn't have keychecking, so pirated copies of Diablo2 could be played on it without penalty.

That was Blizzard's major issue, and one I can agree with.
Re:Appeal by rpdillon · 2004-10-02 06:41 · Score: 1

Too bad bnetd asked for blizzard's help in implementing keychecking (since it would be a violation of DMCA to reverse engineer the system) and Blizzard said "no". Blizzard said no because they knew that they could get them with the DMCA whether or not they:

1) Reverse engineered the keys to prevent piracy (but therefore broke the DMCA)

2) *Didn't* reverse engineer the keys, but then created a tool used to break copyrigth protection.

A good move if you're Blizzard - too bad they were just being assholes.
Re:Appeal by pavera · 2004-10-02 07:06 · Score: 1

The didn't circumvent anything.
The simply didn't implement it. So the game would send the cd check stuff, but *because* they didn't want to violate DMCA, and the cd check stuff was encrypted, they didn't implement it, there server just dropped the cd check stuff.
Re:Appeal by Sloppy · 2004-10-02 07:30 · Score: 1

Ok, so the EFF is going to appeal the ruling. They have had some success in the past, but how can they win here? I am sure the bnetd guys already brought forward most if not all of the important arguments, yet the judge ruled against them.
The court made an extremely weird and radical assertion: that title and ownership of the software, was not transferred when the user bought the software. (Their whole attack on first sale rights, depends on this.)
The court did a poor job of explaining how they reached that novel decision.
Furthermore, the court mentions the (Missouri) Uniform Commercial Code:
A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existense of such a contract.
but then doesn't explain how the purchaser did anything the recognizes the existence of the contract. They talk about some words on the outside of the box, but those weren't terms of the sale, so there's nothing to suggest the purchaser recognized them as a contract. Likely, the purchaser correctly interpreted the words as being Blizzard's fantasy.

--
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:Appeal by ShawnDoc · 2004-10-02 07:34 · Score: 1

Because not all judges think alike. Its the Microsoft strategy, you just keep appealing until you get a judge (or group of judges) that see things your way.
Re:Appeal by the+unbeliever · 2004-10-02 07:36 · Score: 1

Would you have? Seriously?

I know I would have considered it, providing them with the ability to provide passthrough authentication for cd-keys, but in the end, the beancouters choose, not the programmers. Besides, enough copies of bnetd had gotten out to where it wouldn't have mattered. CD-keyless copies would have been distributed to near infinity, and still have been.
Re:Appeal by RAMMS+EIN · 2004-10-02 08:32 · Score: 1

``The court made an extremely weird and radical assertion: that title and ownership of the software, was not transferred when the user bought the software. (Their whole attack on first sale rights, depends on this.)''

Is that actually that radical? As far as I understand, when you pay for a piece of software, you pay for the package and the right to use the software (granted to you by the license). You do not gain ownership of the software itself. Same goes for music, video, etc.

--
Please correct me if I got my facts wrong.

Okay - call me a Linux zealot, but... by bushda · 2004-10-02 06:16 · Score: 3, Insightful

...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

Re:Okay - call me a Linux zealot, but... by scottking · 2004-10-02 06:36 · Score: 1

because it's easy.

but we all know what happens when the easy path is taken, don't we?

--
scott king
Re:Okay - call me a Linux zealot, but... by arose · 2004-10-02 06:39 · Score: 1

Everyone has his own reasons, but most boil down to: I don't care. :-(

--
Analogies don't equal equalities, they are merely somewhat analogous.
Re:Okay - call me a Linux zealot, but... by TheSpoom · 2004-10-02 06:47 · Score: 1

Because you're a commie. ;^)

--
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
Re:Okay - call me a Linux zealot, but... by SlashdotLemming · 2004-10-02 07:13 · Score: 1

software that works the way it' supposed to

I was going to slam you for that statement, but then I realize you aren't some devious spinmaster, but some OSS lackey. You'll be one of the first to strap on the bomb and drive to Redmond when the Source Code wars break out.

I feel for your and you inability to see the faults on both sides.
Re:Okay - call me a Linux zealot, but... by aceh0 · 2004-10-02 07:26 · Score: 1

until open source/free software comes out with something as cohesive as a warcraft, a starcraft, a diablo or a half-life people will buy commercial software. not everyone finds tux-racer to be the pinnicle of gaming
Re:Okay - call me a Linux zealot, but... by bushda · 2004-10-02 07:28 · Score: 1

Quite the contrary - open source software isn't perfect either, but I certainly prefer what OSS will give me for free vs. the idiocy that commercial software brings with it.

I find that those that slam open source software tend to be those that haven't given it a fair shot and are uneducated about what it can offer them. There's a reason that many who try it don't go back to buying software.

Hard saying Free is bad when the software is that good!

--
There are two seasons in my world - Hockey and Construction
Re:Okay - call me a Linux zealot, but... by bushda · 2004-10-02 07:31 · Score: 1

We'll see how the average grandmother deals with Debian Linux soon.

I refuse to turn my mother-in-law loose with the roach motel that is Windows ME, so she'll be running Debian with KDE soon.

I can spend a ton of money on software for an OS upgrade to XP, Microsoft Office, some recipe program, etc. or I can spend an hour installing Debian across a cable modem connection and give her all that an a hell of a lot more for free.

Gee, let me think...

--
There are two seasons in my world - Hockey and Construction
Re:Okay - call me a Linux zealot, but... by bushda · 2004-10-02 07:34 · Score: 1

I'm with you, but re: the games you're talking about - FreeCraft kicks ass!

Can't remember what they're calling it now, but I've spent a lot of time playing FreeCraft, Return To Castle Wolfenstein, Quake 3 Arena, and others all with native support on Linux.

--
There are two seasons in my world - Hockey and Construction
Re:Okay - call me a Linux zealot, but... by damiam · 2004-10-02 08:09 · Score: 1

You're confusing Linux and open-source. FreeCraft is the only one of the games you mention that's open-source; the other two have commercial license agreements. And FreeCraft may be a decent game, but it doesn't hold a candle to Starcraft.

--
It's hard to be religious when certain people are never incinerated by bolts of lightning.
Re:Okay - call me a Linux zealot, but... by sploo22 · 2004-10-02 08:16 · Score: 1

One thing I honestly can't understand is why more and more free software is coming with click-through licenses. One of the whole points of the FOSS system is that your use of the software is not restricted in any way. The GPL actually includes this in section 0:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.

So why do I have to click "Agree" when I install Apache or Firefox? What if I make changes that I don't want to distribute?

--
Karma: Segmentation fault (tried to dereference a null post)
Re:Okay - call me a Linux zealot, but... by sw155kn1f3 · 2004-10-02 09:30 · Score: 1

Just think about it:
People want software to do what they want, they don't care about licensing. They just want their work done quickly and with minimal burden.
Did I say something new? No. So why you guys keep wondering why commercial software is better? Well, because it better does its job most of the time.
Give me open-source replacement to Photoshop and Maya (no, GIMP and Bender don't count). I'l be using it in no time.

--
- Arwen, I'm your father, Agent Smith.
- Well, you're just Smith, but my father is Aerosmith!
Re:Okay - call me a Linux zealot, but... by sploo22 · 2004-10-02 12:49 · Score: 1

But my point is, I shouldn't be forced to agree to it to install the software. The whole point of free software is to not have restrictions. Not letting people use the software without agreeing to the license is an additional restriction. As a matter of fact, it's probably not even legal under the GPL.

--
Karma: Segmentation fault (tried to dereference a null post)
Re:Okay - call me a Linux zealot, but... by maximilln · 2004-10-02 16:13 · Score: 1

Give me open-source replacement to Photoshop and Maya (no, GIMP and Bender don't count). I'l be using it in no time.

Photoshop, and games, are the only things I ever see commercial software advocates harping on... and they do harp on them. When are people going to finally admit that FOSS is just better?

--
+++ATHZ 99:5:80
Re:Okay - call me a Linux zealot, but... by aceh0 · 2004-10-02 19:01 · Score: 1

native linux support doesnt mean no EULA. RTCW, ET and Q3A all had EULAs AFAIK.
I'm with you
so what's your point with the parent? while open source has its place it is pretty irrelevant in the gaming sphere as far as actual games go (not talking about server ports but compelling opensource games)
Re:Okay - call me a Linux zealot, but... by sw155kn1f3 · 2004-10-03 00:06 · Score: 1

Well.. You didn't do any serios CAD or video editing in your life then.
Repeat after me: people don't care about OS and licensing/distribution model. They care about apps. If the great app has source available and is free: it IS great. Apache, Asterix PBX are great and free. But they belong on the server side.

--
- Arwen, I'm your father, Agent Smith.
- Well, you're just Smith, but my father is Aerosmith!
Re:Okay - call me a Linux zealot, but... by juhaz · 2004-10-03 10:13 · Score: 1

File a bug.

Seriously, give it a whirl, maybe someone just though it'd be a nice idea to put it there, and didn't stop to think about the fact that you don't need to agree to the license to use it.
Re:Okay - call me a Linux zealot, but... by sploo22 · 2004-10-03 13:38 · Score: 1

OK, done. It's bug 262751. :)

--
Karma: Segmentation fault (tried to dereference a null post)

ouch. by focitrixilous+P · 2004-10-02 06:16 · Score: 3, Interesting

This is bad. A Blizzard boycott is not likely, due to the quality of their titles overall. I won't be getting whatever they come out with next, but a million fanboys will.

The solution? Someone comes out with a popular piece of software with some crazy clause in the EULA. Like "On October 31st, 2009, your right to use this software is revoked, along with your computer, which becomes our property on the date" or some such. People won't care, and when the enforcement lawsuits come to take your computers, we'll see if this curent decision isn't overturned. Bad news in the meantime, though.

The GPL looks better and better every day.

--
SAILING MISHAP

Re:ouch. by wickedsun · 2004-10-02 06:55 · Score: 1

And then someone will make a EULA where if you change your hardware, you can't use the software anymore! No, wait..
Re:ouch. by ScrewMaster · 2004-10-02 07:03 · Score: 1

You know, that's actually not a bad idea. Needn't even be a major application, just write some nifty shareware app that you can post to Download.com and get 100,000 copies out in a hurry. Put in a twenty-page EULA, and bury that clause somewhere towards the end. Then wait until the expiration date, and send out letters to all your registered users demanding that they ship their computer equipment to you.

In fact, I have just the application in mind: a semantic analyzer specifically designed to review End User License Agreements and recommend whether it is safe to install the software based upon the content of the EULA.

--
The higher the technology, the sharper that two-edged sword.
Re:ouch. by tekunokurato · 2004-10-02 07:06 · Score: 1

"You may use this software only on Tuesdays or the third day of each month. If you should use this software any time but the allotted, we reserve the rights to sick our horde of rats (still in beta testing) on you and everyone you've ever known and loved."

--
Read jack phelps dot net
Re:ouch. by xigxag · 2004-10-02 08:23 · Score: 2, Insightful

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.

Re:Plain Engrish? by eddy · 2004-10-02 06:18 · Score: 1

It roughly translates to "Boycott Blizzard."

You mean "continue to boycott Blizzard".

Won't ever buy one of their games. Was close with D2+expansion, but then this shit blew up.

The right thing to do now is to convert as many people as possible into also boycotting these scumsuckers.

--
Belief is the currency of delusion.

Isn't it time by rpg25 · 2004-10-02 06:19 · Score: 5, Insightful

...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.

Re:Isn't it time by Pig+Hogger · 2004-10-02 06:58 · Score: 1

...to open a second front against companies like this, and just refuse to buy their products?
Boycotts never work. 'cause there's always a sucker that will plunk down green on the table for the shit. This is why you should pirate the stuff. You get the shit and the make gets fuck-all.
Re:Isn't it time by evslin · 2004-10-02 07:12 · Score: 1

Boycotts never work. 'cause there's always a sucker that will plunk down green on the table for the shit. This is why you should pirate the stuff. You get the shit and the make gets fuck-all.

Piracy doesn't really accomplish anything either, for the same reason boycotts don't work.
Re:Isn't it time by Pig+Hogger · 2004-10-02 08:05 · Score: 1

Piracy sends the affected company running around like a bunch of chickens with their heads lopped-off. Witness the RIAA!!!!
Re:Isn't it time by autophile · 2004-10-02 14:10 · Score: 1

..to open a second front against companies like this, and just refuse to buy their products?

[Score -1, Overrated] Post can be transformed into post of the form "When will people learn that..."
--Rob

--
Towards the Singularity.
Re:Isn't it time by mattgreen · 2004-10-03 04:48 · Score: 1

Your blatant disregard for copyright in no way chastises a company for its bad behavior. It only fulfills your inherently selfish desires. If you really cared about this issue you would donate the money you would have spent on the game to the EFF.

Somehow, I don't think you will. Don't kid yourself into thinking you're sticking it to the man, because you aren't. You're just looking out for yourself at the expense of others.

Re:Ummm... by Anonymous Coward · 2004-10-02 06:19 · Score: 3, Informative

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.

Re:Ummm... by Mooga · 2004-10-02 06:19 · Score: 1

"Bnetd - an application whose primary use is to allow people with pirated versions of Blizzard games to play them online = good guys."

The program was made for the legal verson. The fact that you can use it the worng was has nothing to do with the progam it self. There's a lot of info on this if you go to the EFF website and look up the DMCA. I just wrote a speech on the DMCa and metioned this case.

--
~ Mooga

Re:Ummm... by prezkennedy.org · 2004-10-02 06:21 · Score: 1

If you think making "kickass" games is good enough reason for your rights to be tread upon by these guys, well... no wonder the court system is the way it is. Oh yeah... those games are anything but "kickass".

--
It started back in Team Fortress Classic

Pre-installing firefox.... by 3seas · 2004-10-02 06:24 · Score: 1

....Means that your system is a security risk...

Hmmm..... I guess that could be extended to mean that pre-installing Linux .....

Wait a minute...... piracy = security risk???

Hmmm.... maybe MS is on to something here....

In a bid to control piracy.. by xot · 2004-10-02 06:24 · Score: 2, Interesting

they are just going to add to the piracy with rulings and suits like this.A lot of people who used to buy the games are now gonna stop buying them WHICH doesnt neccesarily mean stop playing them.I would just go and download a copy from the net or buy a cheap pirated version.
A lot of people care gonna take this adly and it might surge up the piracy for Blizzard.Great games though, Warcraft,Starcraft n Diablo esp.

--
Lord of the Binges.

Re:In a bid to control piracy.. by maskedbishounen · 2004-10-02 07:31 · Score: 1

Wait a minute..

People who care about their own rights are going to not care about the rights of others, or a company, in this case?

I don't believe it. If they're going to pirate it, they're going to pirate it, but if they want to boycott it as a message to Blizzard that their rights mean something, they're not going to touch the thing with a 10 foot stick-- err, MB pipe.

Anyone using this as an excuse for copyright infringement obviously has no regard for rights to begin with.

--
"An infinite number of monkeys typing into GNU emacs would never make a good program."

Re:Plain Engrish? by Zangief · 2004-10-02 06:25 · Score: 3, Interesting

But you should be able to return it directly to Blizzard.

Boycott Howto:

*Get a lot of money (or indignated consumers)
*Buy Latest Blizzard game in droves.
*Open the box. Copy the game. Copy the CD-Key. Scratch the cds a little.
*Return all the package to Blizzard, arguing you don't agree with the EULA.
*Post Cd-keys somewhere on the net.
*Repeat (since you got the money back, why not?)

No, EULA's don't come with software. by JeanPaulBob · 2004-10-02 06:26 · Score: 5, Insightful

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."

Re:No, EULA's don't come with software. by mitherial · 2004-10-02 06:45 · Score: 5, Insightful

*Huh?* If you are that concerned about EULA's (and I'm not saying that you are wrong to be) simply email the company asking to see their Eula before purchasing. Adobe (for example) lists their EULA on their webpage, and refers you there from the outside of the box [I think this is the way to go].

It used to be standard practice to print the EULA on the outside of the shrinkwrapped plastic disk package.

If you're concerned with the usage-restrictions in a EULA, take the time to find out. And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software .

It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product).

--
Foo?
Re:No, EULA's don't come with software. by mitherial · 2004-10-02 06:51 · Score: 1

Replying to my own post:

What I said is contingent on your being able to get a cash/check refund if you refuse the EULA, or it being explicitly stated, in a prominent position, in legible type on the package that you are explicitly giving up this option. [i.e. "YOUR USE OF THIS PRODUCT IS CONTINGENT ON YOUR ACCEPTING THE INCLOSED EULA (SEE www.goatse.cx/eula for license agreement) NO REFUNDS FOR NOT ACCEPTING EULA WILL BE GIVEN!! PLEASE INITIAL HERE BEFORE PURCHASE.

--
Foo?
Re:No, EULA's don't come with software. by NanoGator · 2004-10-02 12:20 · Score: 1

"*Huh?* If you are that concerned about EULA's (and I'm not saying that you are wrong to be) simply email the company asking to see their Eula before purchasing."

You shouldn't have to do that.

A.) That means they can change the EULA on a whim.
B.) That doesn't protect impulse buy products.

I'm all for caveat emptor, but that isn't a blank check for companies to find clever ways of hiding important details before purchase.

--
"Derp de derp."
Re:No, EULA's don't come with software. by davecb · 2004-10-02 13:01 · Score: 1

Excuse me, is that not imposing a changed set of terms after the offer and acceptance? If so, it's a breach of the oldest commercial law ever, the (methinks 16th century) statute of frauds.
I think that in Canada, they would be selling a program with terms and conditions concealed from the purchaser, and if so the terms would have to be strictly in keeping with normal business practice to prevent it from being considered a changed term.
I wonder what the U.S. variant of the statute of frauds implies...
--dave
Who isn't a laywer, but who taught civil (civilian) and military law in the reserve force, way back in his ill-spent youth.

--
davecb@spamcop.net
Re:No, EULA's don't come with software. by Anonymous Coward · 2004-10-02 15:01 · Score: 2, Interesting

So, let's see. I know some people research games online, or buy whatever their friends are playing, but I prefer to simply go to the store and browse until I find something I like. So my typical process for buying a computer game is:

1. Go to EB
2. Look at game boxes until I find one I like
3. Buy it

Now let's see how the same procedure would look if I had to use your method of accepting/rejecting EULAs:

1. Go to EB
2. Look at game boxes until I find one I like
3. Go home (or to an internet cafe) and look up the EULA on the publisher's site, or email the publisher (and wait for a response) if, like most, the site fails to provide the EULA for perusal
4. Go back to EB
5. Buy the game if the EULA was acceptable; if not, return to step 2 and repeat

Doesn't that seem a little ridiculous to you?

Back when I bought Turbo Pascal (longer ago than I want to remember), the EULA was printed on the envelope in which the floppies were sealed. Borland's license actually stated, in remarkably plain English, that by opening the envelope you were agreeing to treat the software like a book, and that you were therefore welcome to loan it to a friend as long as you made sure that you were not both using it at the same time.

How times have changed...
Re:No, EULA's don't come with software. by ChaosDiscord · 2004-10-02 16:12 · Score: 5, Insightful

If you're concerned with the usage-restrictions in a EULA, take the time to find out.

That's bullshit. When I head over to my local bookstore, I don't first log into the publishers web site to see if I'll be able to sell the book to a used book shop. When I go buy a CD, I don't check to see if I can make a tape copy, or if I can sell it to a used cd shop.
The software industry has managed to convince the world that they get to have magical new rules unlike those anywhere else in the world. This little trick is based on some downright flaky court rulings and an ignorant public. It does not need to be this way, and it should not need to be this way.
I'm perfectly happy to make contracts. I sign employment agreements, cell phone contracts, auto-loan contracts, service contracts, and more. In those situations it's done honestly; we agree roughly on the terms, I'm presented with and sign the contract, we then exchange goods, services, and/or money.
And if you don't agree with the terms (quite reasonable in the case of spyware etc.) don't accept the EULA and send back the software for a refund; that is: don't use the software

Hahahahahahaha. Sure. Take it back; I'm sure they'll happily give you a refund. Right. And since we're in fantasy-land anyway they'll reimburse you for the time you wasted buying a product you only learned you couldn't use when you got home.
It is the software maker's perogative to offer their software on whatever conditions they want, and it is your perogative to NOT USE THEIR SOFTWARE (and instead consider giving your money to a competing product).

Sure. I was at Best Buy recently. There were music CDs, the offer appeared to be about $18 for a music CD, o strings attached. There were some magazines, the offer was often something like $3.95 for a magazine, no strings attached. I actually bought a new clock-radio; the posted offer was $29.95, no strings attached. I headed over to check out pricing for Doom III. The posted offer was $54.99. There was no sign warning me of additional limitations. There certainly wasn't any contract present that I could review. Yet, for some magical reason, I'm supposed to treat Doom III different. It'll complete bullshit. If software publishers want contracts with customers, they can afford to be up-front and honest about it.

--
Search 2010 Gen Con events
Re:No, EULA's don't come with software. by Shajenko42 · 2004-10-02 17:16 · Score: 1

Well, I can see an agreement being required before you are allowed to use Blizzard's online multiplayer service, unless it is stated somewhere on the outside of the box that access to blizzard.net is included with the purchase of the game. However, it's not reasonable to require an agreement before they'll allow you to use the copy of the software that you own.

Basically, it comes down to the concept of consideration. It's required on both sides for a contract to be binding.

Well, except with software in the US, apparently.

I think the only thing that could get this fixed is to release some software with an EULA with terms that state that the user assumes all responsibility for the actions of the software, then make the software spread viruses. If the EULA is binding, the customer is completely legally responsible for the damage it does. That might get things changed.
Re:No, EULA's don't come with software. by Kwil · 2004-10-02 20:42 · Score: 1

EULA?
What EULA?

Do you have a copy with my signature?

What do you mean I agreed when I pressed Agree? Nothing came up on my computer, your Honor.. I had some flaky memory a while ago that I had to get replaced. I vaguely remember when I installed it it popped up a blank box with two blank buttons on it.. I clicked one of them and it just went on. Never thought about it otherwise.

--
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
Re:No, EULA's don't come with software. by DarkEdgeX · 2004-10-02 20:47 · Score: 1

Posts like yours are why there should be a way to mod posts beyond +5. (AKA: I couldn't agree more with what you said).

The case for shrinkwrap license agreements was flimsy at best because you had to buy the product, take it home and open the box to get to read the license agreement (but so long as you didn't break the "shrink wrap" of the media, you could still return it). The case for "clickwrap" license agreements is non-existant. Retailers trap you by instituting no-return policies for opened software, and returning it to the vendor involves more steps than it ought to (e.g. - packing it in a box, paying shipping, etc).

Between the RIAA/MPAA and the software industry we'll probably have no individual freedoms whatsoever in another 15 years.

--
All I know about Bush is I had a good job when Clinton was president.
Re:No, EULA's don't come with software. by follower-fillet · 2004-10-03 01:24 · Score: 1

> *Huh?* If you are that concerned about EULA's (and
> I'm not saying that you are wrong to be) simply
> email the company asking to see their Eula before
> purchasing.
I remember trying to do this with an academic copy of MS Windows or MS Office or something a few years back. Emailed/talked with campus computer dealer, emailed Microsoft, *nobody* could tell me what the license allowed for and said the only way I could find out was by buying the software.

--Phil.
Re:No, EULA's don't come with software. by atcurtis · 2004-10-03 02:28 · Score: 1

Now here is an idea to fight oversized EULAs and junk mail...

Send letters to software companies for a paper hardcopy of the EULAs for each of their products. This may be repeated several times, for bulk.

Pack the EULAs inside the prepaid reply envelopes for all the junk mail you receive.

Rinse, repeat and smile :)

--
-- The universe began. Life started on a billion worlds...
-- Except on one where stupidity was there first.
Re:No, EULA's don't come with software. by drinkypoo · 2004-10-03 14:24 · Score: 1

That's bullshit. When I head over to my local bookstore, I don't first log into the publishers web site to see if I'll be able to sell the book to a used book shop. When I go buy a CD, I don't check to see if I can make a tape copy, or if I can sell it to a used cd shop.

If you don't like it, don't use commercial software. If enough people stop using commercial software, commercial software makers will wonder where they went and start asking questions. When they find out it's the EULAs, they'll find a way to make money without an inane EULA. Probably they'll go to subscription licensing en-masse like they've been threatening to all along. The only thing stopping them doing it now is all their competition.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:No, EULA's don't come with software. by mitherial · 2004-10-03 14:26 · Score: 1

"A.) That means they can change the EULA on a whim."

NOT REALLY, because then you could potential sue them/make a stink/never deal with Co. again if the text they email you (non-binding, just an informative email) doesn't exactly match with the binding agreement you click-through or implicitly consent to (by opening final shrinkwrapped disks)

B.) That doesn't protect impulse buy products."
TRUE, but I believe in personal responsibility and personal freedom, for individuals AND companies:
A company should be able to offer it's products on whatever terms it wishes, and you should be free to purchase the product/service based on those terms or not--- as you wish.

You should be free to make your own decisions (rash & foolish or otherwise) and thus you should suffer the consequences of your actions (positive or negative).

--
Foo?
Re:No, EULA's don't come with software. by mrchaotica · 2004-10-03 14:56 · Score: 1

That's great, but it's your word against Microsoft. Who is the judge gonna believe?

("Microsoft" representing the commercial software industry)

--
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Re:No, EULA's don't come with software. by mrchaotica · 2004-10-03 15:10 · Score: 1
That's such a copout! If I don't like it, I'm damn well going to complain as loudly and publicly as I can, because if I don't it can only change for the worse.

The problems with your argument are as follows:
1. Enough people won't stop using commercial software, because they're ignorant and/or apathetic about the dangers.
2. Rather than looking for actual reasons, commercial software makers will blame copyright infringement (cleverly using that dirty epithet "piracy").
3. The government (a.k.a. "corporate whores") will pass assorted laws to prop up their business model, at the expense of everyone else, and to the detriment of Freedom (i.e., Civil Rights).
Your "if you don't like it, don't use it" argument isn't enough. You have to also explain to everyone else why they shouldn't like it, or you (and the rest of us) lose.
--
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Re:No, EULA's don't come with software. by drinkypoo · 2004-10-03 16:37 · Score: 1

It's fine with me if you complain, I'm just telling you what you can do about it right now. Anyway, I'm not personally having a bunch of problems due to EULAs, ridiculous as I find them. If you don't like it, then you have to explain to everyone else why they shouldn't like it. I'm just ducky, thanks.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:No, EULA's don't come with software. by mrchaotica · 2004-10-04 06:09 · Score: 1

If you wait until you actually start having problems with EULAs, it will already be too late, because they won't start making really draconian EULAs until they feel the law is completely on their side.

Incidentally, this whole bnetd affair strikes me as a huge step in that direction.

--
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Re:No, EULA's don't come with software. by spotteddog · 2004-10-05 06:14 · Score: 1

It used to be standard practice to print the EULA on the outside of the shrinkwrapped plastic disk package.

I remember back in 1985 (when I worked in retail computer sales), all the big software (and most of the smaller stuff) had the EULA sheet visible through the shrink wrap. Most of the print was so small you couldn't read it. There was usually a line about not breaking the shrink wrap if you didn't agree with the EULA.

They could go back to that system, but then we would complain about the gigantic packages!!

--
. there used to be a sig here.....
Re:No, EULA's don't come with software. by mitherial · 2004-10-06 09:17 · Score: 1

That is definitely something worth making a stink over. (I seem to remember a similar case, with people who didn't accept the license agreement for the copy that came with their new computer and wanted a refund.) They are selling you the software contingent on your accepting the license, and you are paying for the software (directly or indirectly) through your accepting the license.

--
Foo?

Re:Ummm... by tachi_ · 2004-10-02 06:28 · Score: 1

i'll bite.. by your logic it'd allow ppl like MPAA and RIAA to sue the creater of bittorrent (just a networking protocal for efficient file distribution) because its primaryly used to distribute illegal bootleged movies and such. do you see the problem? they should be going after the ppl who pirate their games. bnetd is just an alternative to their battelnet servers. its not there fault that the ppl who uses it pirated blizzard games. i remember at some point they even tried to work w/ blizzard and impliment their cdkey check system into bnetd which of course was turned down by blizzard.

bnetd's case by rpdillon · 2004-10-02 06:28 · Score: 5, Informative

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.

Re:bnetd's case by DAldredge · 2004-10-02 06:50 · Score: 1

why did you put a ! behing daemon?
Re:bnetd's case by rpdillon · 2004-10-02 06:57 · Score: 2, Funny

Sarcasm. Most /.'ers would know that a program ending in a "d" would be a daemon. inted, xinetd, httpd, dhcpcd, etc.
Re:bnetd's case by tekunokurato · 2004-10-02 07:11 · Score: 1

I think Badnarik said that just a few weeks ago on Slashdot, actually.

Nicely enough, I'm in MA where Kerry will win the electorate regardless of what I do, so I get to vote for the man who wants to fix the DMCA.

--
Read jack phelps dot net
Re:bnetd's case by Electrum · 2004-10-02 07:14 · Score: 1

it was a workaround to allow LAN games over TCP/IP (vice IPX, bleh)

Actually, no. It allowed internet games (not just LAN games) without using Battle.net. Starcraft (and probably other Blizzard games) allow LAN games using UDP now. In fact, that's all the Mac version supports.
Re:bnetd's case by epcraig · 2004-10-02 12:21 · Score: 1

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.
Vote for Nader, Cobb or Badnarik (sp?), all of whom have announced their opposition to the DMCA.

--
Ed Craig "Who cares what you think?" George W. Bush, 4th of July 2001

Someone please explain to me... by Hamster+Lover · 2004-10-02 06:29 · Score: 4, Insightful

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?

Re:Someone please explain to me... by Romothecus · 2004-10-02 07:47 · Score: 4, Informative

Disclaimers: I am not a lawyer. I am a law student. I have not finished my law degree and I am not admitted to the bar in any state. This post does constitute legal advice. I have not even finished reading the entire opinion.

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.
Re:Someone please explain to me... by Anonymous Coward · 2004-10-02 15:03 · Score: 1, Interesting

How would they prove I actually accepted the EULA? It's very trivial to do something like:

I pushed the space bar, I didn't click OK

I created too many widgets and the text widget with the license didn't show up because it ran out of resources

I swapped the text of the OK and Cancel buttons (this wouldn't be reverse engineering because you can do this programatically at runtime by sending the window set text messages)

I swapped the IDs of the OK and Cancel buttons (can be done programatically too, not reverse engineering).

I sent a message to the OK control via an external app

I wrote my own system hook to not accept text messages on all edit controls, so the EULA text couldn't be set.

I changed my font to have the letters messed up, so the dialog was complete gibberish. I clicked on the "XU" button that magically dismissed the dialog.

I changed my settings so everything is solid black, I just happened to push the enter key on my keyboard and it worked.

My computer had a virus that would offset the mouse cursor by -20 pixels in the x direction, I clicked cancel but the dialog thought I actually accepted it.

etc.
Re:Someone please explain to me... by Romothecus · 2004-10-03 03:22 · Score: 1

That was a typographical error. For the record, I meant to say "This post does not constitute legal advice."
Re:Someone please explain to me... by Romothecus · 2004-10-03 03:25 · Score: 1

There was a typographical error. For the record, I meant to say "This post does not constitute legal advice."
Re:Someone please explain to me... by mibus · 2004-10-05 12:39 · Score: 1

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.

I don't generally play games; I leave that to my best friend (who currently has more money and more free time).

Is there a part of the EULA that stops me from using his computer (which I often do) and his install of $PROGRAM (which I often do) and reverse engineering it? (Which I haven't done yet, but hey).
Re:Someone please explain to me... by Romothecus · 2004-10-09 08:59 · Score: 1

Depends on the individual EULA. Arguably you would be not be allowed to play it, since you haven't entered into the EULA, which is what (apparently) grants you license to use.
The biggest thing to remember is that THE GAME IS NEVER YOUR PROPERTY UNDER THE LAW. The disc may be your property, but THE PROGRAM IS NOT. You are getting a limited license to use.
The biggest problem is how you reconcile paying first. Certainly invites critique as a "holdup" problem.

EULA is a contract by nurb432 · 2004-10-02 06:29 · Score: 1

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..

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---- Booth was a patriot ----

Re:EULA is a contract by rollingcalf · 2004-10-02 06:41 · Score: 4, Insightful

"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?

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---------
There is inferior bacteria on the interior of your posterior.
Re:EULA is a contract by Anonymous Coward · 2004-10-02 06:48 · Score: 5, Interesting

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.
Re:EULA is a contract by ClosedSource · 2004-10-02 06:50 · Score: 1

Typically the EULA (or some warning about it) is part of the packaging. If you don't want to agree to it, don't open the CD package and you can return the software.

By the this time most people can't claim they were fooled, the existance of EULA's are well known.
Re:EULA is a contract by Zak3056 · 2004-10-02 06:54 · Score: 2, Insightful

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?
Re:EULA is a contract by arkanes · 2004-10-02 07:12 · Score: 3, Interesting

This is untrue - 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". That's totally aside from the point that I cannot see how any judge can reasonably claim that an EULA has any standing. It's clearly not a contract. The only case law I've read seems to have the judge saying that he thinks the software industry derserves to have this sort of extra power, so he's going to let them have it. With all the retorical whining about activist judges, why don't people pick on this sort of nonsense?
Re:EULA is a contract by Ph33r+th3+g(O)at · 2004-10-02 07:13 · Score: 1

So you're saying that by knowing the existence of a EULA, the text of which the purchaser of the software cannot read, from a warning sticker and opening the package, constitutes a contract? I suppose if the BSA/SPA/etc. buy a few more judges, it will be true.

--
I too have felt the cold finger of injustice.
Re:EULA is a contract by FLEB · 2004-10-02 07:40 · Score: 3, Interesting

It makes me wonder what the legality is on pre-editing, deleting, or "wedging" a new EULA in before you run the installer.

--
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
Re:EULA is a contract by HeghmoH · 2004-10-02 08:10 · Score: 2, Insightful

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.

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Mod down posts with a "Free Mac Mini/iPod" sig, they're spam!
Re:EULA is a contract by KDR_11k · 2004-10-02 08:14 · Score: 1

That's not always true. The Diablo 2 packaging does include this notice (at least on the old cardboard box), but e.g. Doom 3 doesn't (games sold in DVD cases don't seem to include this notice). However, the Diablo 2 packaging gives no hint as to what the EULA entails and does not cite any place to look it up.

--
Justice is the sheep getting arrested while an impartial judge declares the vote void.
Re:EULA is a contract by GoRK · 2004-10-02 08:16 · Score: 1

They'll probably just come at you with the DMCA in that case.
Re:EULA is a contract by wuice · 2004-10-02 08:36 · Score: 1

Probably because normally those "activist" judges you hear about on the big media outlets are harming big business, while a ruling like this does nothing but help big business.
Re:EULA is a contract by cpt+kangarooski · 2004-10-02 08:51 · Score: 1

Well, the way the transaction is being construed is that the EULA is just a part of the purchase to begin with.

Essentially, you go to the store, and pay your money in advance of seeing the full terms of sale, on the understanding that the rest of the terms of the same transaction will be presented later, and that you can still disagree with them and return what you have for your money back.

It's been analogized to buying insurance (where you pay well before you get the terms), or a plane ticket (where you pay, and are later given a ticket with all kinds of terms attached to it), etc. The reason is that it's inconvenient to present the terms in advance, in the store, so given that the seller only wants to sell according to these terms, and you therefore could only buy according to these terms, it's not a big imposition to reorder when things occur.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:EULA is a contract by LiquidRaptor · 2004-10-02 09:38 · Score: 1

It's been analogized to buying insurance (where you pay well before you get the terms)

Thats funny, I had to sign a 5 page document when I got my car insurance, life insurance and homeowners insurance, that document was admittidely far more complex than I could make out but I'm sure that if I wanted I could have faxed it to a lawyer to have them look at it first.
I don't know about the plane ticket analogy but you insurance one is pretty flawed.
Re:EULA is a contract by BobTheLawyer · 2004-10-02 10:24 · Score: 1

Clearly ineffective: they are offering you a contract which you are free to accept or reject.

If you amend the contract before you agree to it then you are rejecting their original contract. If you communicate the amendments to the company (not the retailer) then you are making a "counter-offer" of a new contract to them - which in the real world they are likely to reject.

This is a common occurance with "normal" paper contracts. There's plenty of case-law - it's the kind of thing taught in introductory contract law courses.
Re:EULA is a contract by BobTheLawyer · 2004-10-02 10:28 · Score: 1

It's not that black and white. In many jurisdictions, these limitations aren't effective(and the clause acknowledges that).

However the effect of this will generally be to (effectively) excise that clause from the contract, not to make the whole contract invalid.

This is probably typical: most EULAs are likely to effective in part and ineffective in part. The idea that EULAs can in principle never be binding at all is daft.
Re:EULA is a contract by cpt+kangarooski · 2004-10-02 10:48 · Score: 1

No, I mean the FURTHER terms you typically get in the mail that go into even greater detail.

E.g. when I bought car and renter's insurance, I signed numerous forms at the insurance agent's office. A week or so later, I get an envelope with numerous packets of information all of which are additional terms to the agreement.

It's not an unusual practice.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:EULA is a contract by LiquidRaptor · 2004-10-02 11:21 · Score: 1

ahh...thats the thing I love about State Farm, I sign everything at the office nothing else comes by except the "official cards and paperwork" which are the plastic cards and paperwork on how to file claims and stuff. No other terms and condition. If the terms and conditions change I get notice at least 30 days before the change goes into effect during which time I can cancel my policies with no loss other than me trying to find a new provider. Course there was the exception with the credit reports but I didn't get bit by that.
Re:EULA is a contract by Tim+C · 2004-10-02 11:39 · Score: 1

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)

I've seen the EULA printed in the back of the manual of a number games - a quick check reveals Arx Fatalis to be one (but not UT2k4, my first pick).

True, you have to have opened the package, but you don't have to have run the installer. I'm not sure where the EULA would fit on the box, though.

--
It's official. Most of you are morons.
Re:EULA is a contract by Tony+Hoyle · 2004-10-02 12:50 · Score: 1

It depends on how you offer it to them.

In paper contracts, if you modify it, send it back for countersigning and the other party countersigns it without reading - well they shouldn't have hired cheap lawyers (I've done this many times...)

For example you could modify the EULA then send it to them along with an "I agree to this EULA, I need you to countersign to make it legal" they may well do the same.
Re:EULA is a contract by Perey · 2004-10-02 13:00 · Score: 1

You were indeed paying for the packaging and the physical contents, but that packaging made certain claims about what you would be able to get inside. A lot of EULAs try to disclaim merchantability and fitness for a particular purpose, which (standard IANAL) I think would let them worm out of their responsibilities to provide what they offered on the box... if you had to agree to it before purchase. (Besides, in Australia at least, I'm pretty sure those warranties can't be disclaimed. If you sell it, it has to be appropriate to sell.)

But no, you're presented with it when you run the installer. Hey... there's a thought. Since you bought a CD containing sufficient data for the program, what if you manually installed the program, never running the installer or clicking through the EULA? Extract this archive, create that registry key, and bang, a copyright-protected-only installation. You'd see an increase in programs that display their licence when they first run, I guess...
Re:EULA is a contract by ClosedSource · 2004-10-02 13:21 · Score: 1

Well, if you know there is a EULA and you have a pretty good idea what it's going to say (because you've read many of them, if you care about the issue) then why not refuse to buy the product?

The fact is that most people on Slashdot know exactly the kind of limitations the EULA is going to include and they install the software anyway. Some people hope they can legally get away with violating the terms under the theory that they didn't know what it said, but it looks like it isn't going to work.

Have you actually tried to get your money back from a software company due to the fact that you didn't know the terms of the EULA in advance? It might actually work. I suspect that most people don't do it because they want the software regardless of the EULA but they still want to complain about it.
Re:EULA is a contract by arkanes · 2004-10-02 19:41 · Score: 3, Insightful

The idea that EULAs can in principle never be binding at all is daft.
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!
Re:EULA is a contract by SurgeonGeneral · 2004-10-02 21:14 · Score: 3, Informative

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.

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-- "Man is born free, and everywhere he is in chains." Jean Jacques Rousseau
Re:EULA is a contract by BobTheLawyer · 2004-10-02 21:47 · Score: 1

The problem with the approach you're taking is that this isn't a question of politics or logic, but a question of law, and EULAs fit into contract law as it's been understood for a very long time.

EULAs fit every definition of a contract: there's an offer from the copyright holder to grant you a license in consideration for you accepting certain terms.

See if you can find any legal authority which agrees with you: I suspect that you won't.
Re:EULA is a contract by BobTheLawyer · 2004-10-02 21:51 · Score: 1

I think the original poster was suggesting you could modify the EULA without sending the amended terms back to the other party!
Re:EULA is a contract by FireFury03 · 2004-10-02 22:05 · Score: 1

...are provided "as is" without warranty of any kind, either express or implied... ...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

Is the second clause in that quote even valid? It appears to be excluded by the first clause (the product is provided without any warranty, even if a warranty is expressly indicated).

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http://blog.nexusuk.org
Re:EULA is a contract by geminidomino · 2004-10-02 22:15 · Score: 2, Informative

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.
Re:EULA is a contract by Hackie_Chan · 2004-10-02 22:36 · Score: 1

That's pretty funny. I wonder how things would be if somebody programmed an installer that installed Blizzard's games without agreeing to the EULA. Blizzard could try to go after the guy for not complying with their EULA of reverse-engineering their software -- but how? He's never read the EULA because he used his own installer! Funny paradox.

--

What's so bad about being lazy? What if there was a war and nobody showed up?
Re:EULA is a contract by arkanes · 2004-10-02 23:08 · Score: 1

I still think it's a crock of crap. Also, depending on the circumstances, a verbal agreement to buy something is hardly binding - that's why we have the formalization of the contract. If you find the house to be unacceptable on further inspection, or if the seller won't agree to your terms, you change your mind. No harm, no foul. Further, you don't pay for a house and THEN sign the papers. The circumstances aren't the same. In any case verbal contracts are notoriously weak, thats why we have paper ones. It's also not relevant because there's not even a verbal contract involved here.
The economic argument is bunk - removing the power of EULAs would only stimulate the economy through increased inovation. They do nothing but extend copyright monopoly powers to previously unacceptable levels. In reading the decision, it's painfully obvious that the judge (and other courts) are uneducated about technology, although I imagine that the EFFs lawyers could have tried to be a bit more explict (like defining "hack value", which the decision notes wasn't defined). One the cases the decision was based on was a DVD case which found that "using" a DVD is different than "decrypting" it, which any technical person could tell you is false - the only way to use a DVD involves decryption.
This ruling essentially gives carte blanche to software producers to override copyright law. Further, there is nothing in the decision that pertains specifically to software - there's no reason that a CD or book publisher couldn't stick the same sticker on and make the same claims, citing this case. Hopefully, these sort of arguments will come up on appeal.
There's several other problems with the decision - the judge seems to have decided on his own that the actual purpose of bnetd is piracy rather than interoperability, he claims that because it's free there is no commercial value beyond piracy (clearly false, the fact that the creators chose not to exploit it doesn't mean there was no value), and he dismisses the EFFs first sale claims by stating that purchase of software is not in fact a purchase without citing any supporting cases. There was a California case that supported the opposite point, I hope the EFF can bring that up on appeal as well. The judge also seems to make the decision that just because EULAs are common practice, they have power - he essentially states that people should ASSUME the prescence of an EULA, and therefore should assume when purchasing a product that they are waiving rights they are assured by law. I can't put into words how much this disgusts me. The precdent this sort of thing sets just staggers the imagination.
Re:EULA is a contract by arkanes · 2004-10-02 23:22 · Score: 2, Insightful

What consideration? The only consideration involved is the use of the software, which only applies if the software is licensed, not sold, which only applies if you toss out all reasonable expectation of right of first sale and decide that just because it's sold as a retail product doesn't mean it actually is one. I've got no problem with licensing software but it needs to be sold as such, not as a retail product. If you're going to sell it, over the shelf and without an up front (ie, before paying) disclosure and acceptance of the contract terms, then you need to accept the fact that your product will be treated like any other retail item (say, a CD or a book) and you don't get to leverage other restrictions.
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.
Re:EULA is a contract by Loonacy · 2004-10-03 01:57 · Score: 1

I would think that until you agree to the EULA, standard copyright law applies. If this is the case you would be well within your rights to modify the program any way you see fit.
The only problem with that would be if they had a sticker or something saying "By opening this package you agree to the terms outlined within."
In that situation, the question would be how you could get it open without agreeing.
Re:EULA is a contract by sweede · 2004-10-04 06:04 · Score: 1

the warranty is on the media (CD) that contains the Program. There is no warranty on the Program itself

It is not excluded by the first clause because it is not the same item

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I follow the SDK and GDN principles.. Spelling Dont Kount, Grammer Dont Neither
Re:EULA is a contract by SurgeonGeneral · 2004-10-04 11:43 · Score: 1

Well as consumers our only option would be to try and return the product to both the retailer and manufacturer, and if this doesnt work I would sue them. This would be more difficult for you though since you are not a lawyer and it would be very expensive.

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-- "Man is born free, and everywhere he is in chains." Jean Jacques Rousseau

Its all fun and games until Battle.net dies by dtandersen · 2004-10-02 06:29 · Score: 1

If Battle.net should ever shut down (e.g. Blizzard goes out of business), then titles like Starcraft, Diablo, and Warcraft will cease to be playable over the internet.

Re:Its all fun and games until Battle.net dies by Krakhan · 2004-10-02 07:40 · Score: 1

Well, programs like Kali (http://www.kali.net/) have been around longer then battle.net. So, I'm sure the online gaming would continue in one form or another. Hell, this is how a lot of people that I know are able to play Hellfire: The Dark mod with others.
Re:Its all fun and games until Battle.net dies by toddestan · 2004-10-02 13:17 · Score: 1

If Battle.net should ever shut down (e.g. Blizzard goes out of business), then titles like Starcraft, Diablo, and Warcraft will cease to be playable over the internet.

Actually, if Blizzard went out of business, chances are no one would care about projects like bnetd. The real threat would be if Blizzard decided to end battlenet support for old games - and continued to squash projects like bnet. That would be an interesting scenario.

Let's take it slowly. by noselasd · 2004-10-02 06:30 · Score: 1

This story is full of legal blurb.
In a sentence what does this mean for You and Me ?

Re:Let's take it slowly. by Pig+Hogger · 2004-10-02 07:02 · Score: 1

This story is full of legal blurb.
In a sentence what does this mean for You and Me ?
In a word: bend-over.

Re:judge by Squonk01 · 2004-10-02 06:30 · Score: 1

Judge Charles A. Shaw
United States District Judge

United States District Court
Eastern Division of Missouri, Eastern Division

Courtroom 12 North
111 South 10th Street
Suite 12.148
St. Louis, MO 63102

Phone: (314)244-7480

He's a Clinton appointee.

Time to Burn Some Karma But by Brian_Ellenberger · 2004-10-02 06:30 · Score: 2, Insightful

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

Re:Time to Burn Some Karma But by JamesTRexx · 2004-10-02 07:51 · Score: 1

This isn't about them providing servers or bandwidth, it's about people wanting the opportunity to run their own private gameserver just to be able to do multiplayer with their friends.
I play Unreal Tournament at work about once a week after office hours with colleagues and friends, and because we want to keep it private, and we can't connect to gameservers outside I've set up our own gameserver. I've even thought of going for Starcraft or Warcraft, but after hearing this, I'm not going to buy those games because I can't use them the way I want to.
I think for a multiplayer game to be successful, it needs to have a simple gameserver that can be set up anytime, anywhere, and not be dependent on a single company and a specific connection type.

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home
Re:Time to Burn Some Karma But by gl4ss · 2004-10-02 08:07 · Score: 1

**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.**

you got some numbers to hold that up? no, of course you don't. there's plenty of games coming out. and someone is making plenty of money on the pc games.

btw.. they(blizzard) are profitable and their games aren't special in any way, they're hardly doing anything innovative - and in times yes, their servers and services have sucked butt.

particularly, they let it go on for quite some time before they decided to do anything about it.

and if that wasn't enough, PUMPING MONEY FROM GAMES THAT HAVE BEEN PROFITABLE AFTER 2 MONTHS OF RELEASE IS _NOT_ PRESSURING THEM TO DO _NEW_ _INNOVATIVE_ GAMES. and you can bet your ass that it doesn't go directly into the next game being of more higher quality.

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world was created 5 seconds before this post as it is.
Re:Time to Burn Some Karma But by sqlrob · 2004-10-02 08:15 · Score: 2, Insightful

Let see...

Console: Take the disk, pop it in, play

PC: Double check the system requirements, update hardware if needed (possibly many $$$$), hope like hell it doesn't install something that causes BSODs or erases USB drives as some protection has been known to do.

Right, piracy is the main reason for the decline.
Re:Time to Burn Some Karma But by cynical+kane · 2004-10-02 08:55 · Score: 2

Um, the way War3 is set up, you don't need a private server to create private games or channels. In fact, this should be obvious. "Simple gameservers" exist only because, in an FPS, it is neccesary to have a low-ping dedicated host with CPU time to spare.
Re:Time to Burn Some Karma But by JamesTRexx · 2004-10-02 09:02 · Score: 1

I forgive anyone, as long as I'm not forced to buy their stuff.
Maybe they've sold much now, but it might be less in the future.

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Re:Time to Burn Some Karma But by JamesTRexx · 2004-10-02 09:06 · Score: 1

Well, I have to admit I haven't used Warcraft 3 (yet), but I prefer to game with an independant server so I don't have to switch between monitoring it and playing the game. (and you'll understand why when you hear the complaints from the guys about bots being too weak/strong/few/many all the time *lol*)

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Re:Time to Burn Some Karma But by Maul · 2004-10-02 15:15 · Score: 1

#1. The reason that Blizzard has been successful is because they consistantly make good games. Bnetd has been available since 1998, but StarCraft still sold millions of copies.

#2. The problem with the PC game market is that it can be a pain just to get a game to run.

Most people just want to play games. They don't want to check system requirements or deal with PC issues such as upgrading drivers, making sure their OSes haven't been turned to swiss cheese by spyware, etc.

Furthermore, not everyone is willing to upgrade their PCs to play the latest games well. The price of a top of the line graphics card is the same or more as the price of a game console. That card will be outdated within a year, whereas the console's life will be at least 4 years.

#3. It isn't like piracy is unheard of on consoles. Almost everyone I knew in high school and college who was a "gamer" had a modded Playstation and towers of pirated games.

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"You spoony bard!" -Tellah

Re:Plain Engrish? by ajs · 2004-10-02 06:31 · Score: 2, Interesting

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.

This seems like as good a time as any to point out that Linux games are getting better and better. You can download wesnoth, Neverball, and other great titles for free. Even get the source on and learn to write computer games yourself if you like.

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.

Re:Ummm... by Aash · 2004-10-02 06:31 · Score: 1, Troll

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.

Yeah, just like filesharing is only for independent bands to get their music heard, cracks are only for educational purposes, and emulators are only for playing games you already own.

Justify it all you want -- and hey, some people probably are using bnetd legitimately -- but most people are using it to play pirated versions of Blizzard's games.

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These aren't the droids you're looking for.

and now? by topgan1 · 2004-10-02 06:32 · Score: 1

What we should do now? Stop using bnetd? Stop playing Blizzard games? Stop reading EULAs? Stop buying pirate software? Start programming free software? I mean, we heard these before... these things rnt new :)

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Sourdia Rulez

Re:and now? by topgan1 · 2004-10-02 08:19 · Score: 1

you know what i mean... :)

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Sourdia Rulez
Re:and now? by topgan1 · 2004-10-02 08:22 · Score: 1

but "using" is a more appropriate word i guess :)

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Sourdia Rulez
Re:and now? by Taladar · 2004-10-02 09:58 · Score: 1

Stop reading EULAs?
Speak for yourself. I never started that one.

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Linux is not Windows
Re:and now? by topgan1 · 2004-10-02 10:10 · Score: 1

heh :) j/k EULAs are there for us to read them.
He who doesnt read them shouldn't use the program as well... :)

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Sourdia Rulez

Nope by rsilvergun · 2004-10-02 06:33 · Score: 2, Interesting

No lawsuits, they just tell you to take it up with the Manufacturer. On the other hand, I'm pretty sure the Manufacturer is required to accept returns in those curcumstances. Now if we could just get a couple tens of thousands of gaming nerds to buy Blizzard software and then return it right to the manufacturer. This would really fuck them over since they'd have to pay for a) their cost on the game and b) the retailer's profit margin. Oh well, people are lazy, this is not going to happen.

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Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/

Re:judge by Eschatus · 2004-10-02 06:33 · Score: 1

Well, if you just scroll down to the bottom of the doc, you'll see that it's United States District Judge Charles A. Shaw. This is really no surprise, as a growing number of them are thoroughly corrupt. As well documented on the following site: http://www.jail4judges.org/

Re:Ummm... by quantum+bit · 2004-10-02 06:33 · Score: 2

Bnetd - an application whose primary use is to allow people with pirated versions of Blizzard games to play them online = good guys.

Uh, no, a lot of people use it for the same reason that I do -- running a private server for friends (who own legitimate copies, thank you very much) to play on that is free of cheaters and lamers.

Easy fix by MichaelKaiserProScri · 2004-10-02 06:34 · Score: 1

Read the EULA. If you disagree with it, return it! Never buy anything from that publisher again.

Re:Easy fix by raodin · 2004-10-02 06:57 · Score: 1

Have you ever tried to return software??
Re:Easy fix by KDR_11k · 2004-10-02 07:52 · Score: 2, Interesting

Since the EULA can override the sales contract on what it is you paid money for, you can probably force the retailer to accept that the EULA overrides that part of the sales contract as well... Or you could claim that you never actually bought the software and that you're merely paying for a license but since you didn't sign it the whole sales contract is void...
But then I'm not a lawyer. Do we have any of those on YRO?

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Justice is the sheep getting arrested while an impartial judge declares the vote void.
Re:Easy fix by myowntrueself · 2004-10-02 09:32 · Score: 1

"but since you didn't sign it the whole sales contract is void"

Since when does anyone ever sign a EULA? Or does a click of the mouse -- an *anonymous* click of the mouse -- now count as a legal signature in the USA now?

This has to be the breaking point of this EULA as Contract argument; either a EULA is a contract in which case both parties must sign it or if neither party signs it then there is no contract.

Or does American contract law not require any form of signature?

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In the free world the media isn't government run; the government is media run.
Re:Easy fix by DavidTC · 2004-10-02 12:26 · Score: 1

That's the thing that gets me. Forget any copyright argument or arguments about imposing terms after a sale.
I just want to see someone prove that anonymous click was mine. I want them to prove a cat didn't jump on a keyboard, or some toddler didn't wander by.
That's what their lawyer should have argued. They should have asked Blizzard to point out exactly which of their employees agreed to that contract, and why Blizzard thought said employee could agree to a contract on behalf of the corporation. (This is, I believe, a fairly standard question in business contract law.)
But the gag here is...Blizzard doen't know who agreed to the 'contract', which makes it a rather absurd sort of contract. Blizzard had absolutely no idea if the person who agreed was even slightly authorized to agree to the contract on behalf of the company. Now, contract law says, if you think someone at a company is authorized to do something, and they represent themselves as such, the contract is valid...but you have to make at least a minimal sanity check, like 'Does the person actually work there?'.

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If corporations are people, aren't stockholders guilty of slavery?
Re:Easy fix by snkline · 2004-10-02 13:23 · Score: 1

Contracts in the USA don't have to be written or signed except in certain cases (on a state by state basis) governed by the Statute of Frauds.

Lets see if I can remember:
All contracts dealing with real estate must be in writing.
All contracts for the sale of goods exceeding $500
Marraige contracts
Arghh! I know there are more but those are all I can think of. It should also be pointed out that this doesn't mean you necessarily have to sign something. For example a sales receipt is perfectly valid, both parties don't have to sign it to form a contract.

Contract Law is quite a fun subject actually, and I suggest anyone in college take it.
Re:Easy fix by MichaelKaiserProScri · 2004-10-02 14:10 · Score: 1

If they are sticking to the letter of the EULA, they must honor ALL of it or NONE of it. There is always a clause stating what you can do if you refuse to abide by the EULA. It's a pain in the butt to follow through on, but it is possible. Microsoft doesn't advertise it, but they will refund $25 per copy for Window XP Home if you refuse to accept the EULA on a machine that it is shipped on. You really need to nag them, but they will do it.
Re:Easy fix by myowntrueself · 2004-10-02 15:43 · Score: 1

"For example a sales receipt is perfectly valid, both parties don't have to sign it to form a contract."

Right, but then your contract is with the seller not with the manufacturer...

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In the free world the media isn't government run; the government is media run.
Re:Easy fix by Pofy · 2004-10-04 18:54 · Score: 1

>If they are sticking to the letter of the EULA,
>they must honor ALL of it or NONE of it. There
>is always a clause stating what you can do if
>you refuse to abide by the EULA.

Ehh, if you don't agree to the EULA, it is of course not in effect for anyone, so it is irellevant what it says, no?

The "problem" (or rather one problem) with the EULA is that most seems to treat them as if they apply even before anyone agree to them, and also apply if you do not agree to it. It is thus irellevant if the EULA says you can get a refund if you don't agree to it, since then there is no agreement and the EULA is void. The same applies to the purchase of the software (before you open/install/whatever). It is claimed that it is not a purchase but a license since the EULA says so, but you have not agreed to it yet, so how can it be in force? And if it is, why would you have to agree to it anyway?

Cue Hip-Hop Beat... 1.. 2... yo, yo... by Anonymous Coward · 2004-10-02 06:34 · Score: 2, Funny

God fucking damn it! This is teh sucks. "All your base are Belong to us!" Blizz with the blitz Got the gamers in fits Fair Use has been dissed now the EULAs exist Vivendi gets pissed as STEAM clouds thier green visors As VALVE holds the mod community with incisors The game won't come out till legalistic advisors come up with a way to please the stockholder misers!

Re:Cue Hip-Hop Beat... 1.. 2... yo, yo... by evslin · 2004-10-02 07:20 · Score: 1

Hmm ...

Needs a few lines about slapping bitches and shooting cops, but otherwise, phat beats yo!

It's not good guys vs bad guys... by argent · 2004-10-02 06:35 · Score: 2, Insightful

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".

Re:It's not good guys vs bad guys... by cbrocious · 2004-10-02 06:39 · Score: 1

Actually, using a shared library between a GPL'd library and code with an incompatible license is not neccesarily legal. Something to do with the dependance clause.

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Disconnect and self-destruct, one bullet at a time.
Re:It's not good guys vs bad guys... by argent · 2004-10-02 07:19 · Score: 1

Actually, using a shared library between a GPL'd library and code with an incompatible license is not neccesarily legal.

That's what I said: that's the difference between the GPL and the LGPL. The GPL covers the API.
Re:It's not good guys vs bad guys... by russotto · 2004-10-02 14:20 · Score: 1

Actually, the GPL is silent on the API. Some commentators on the GPL (including some within the FSF) have asserted that merely dynamically linking to a GPL-covered library creates a derivative work which woud then be covered by the GPL. Others have gone even further and claimed that using a defined plug-in style interface creates a derivative work; I don't think the FSF has ever asserted that.

The LGPL explicitly allows unrestricted use of an API (numerical parameters, data structure layouts and accessors, and small macros and small inline functions) even if the law considers the work using the API to be a derivative work. It also allows statically linked executables to be distributed without distributing the source of the work using the library (with some additional conditions)
Re:It's not good guys vs bad guys... by argent · 2004-10-02 15:26 · Score: 1

If dynamically linking to a GPLed library counts as 'mere aggregation', then there's no difference between the GPL and the LGPL. All you need to do is make the code you want to exclude from the GPL into a library, or make the GPLed code a library, and you're off scot free.

The FSF pretty solidly stood behind the idea that the GPL applied to APIs in the RIPEM/gmp debacle, though they swore up and down that they weren't copyrighting the API: they were copyrighting the include file you "had to" include in your code to call the API. I fail to see the distinction has any practical application, myself: if that enough to make it a "derived work" then SCO's position would be a lot stronger.
Re:It's not good guys vs bad guys... by russotto · 2004-10-03 12:59 · Score: 1

I haven't found RMS's remarks on the RIPEM/gmp issue, just other people's summaries of it. It looks like he was going after a "contributory infringement" theory. That is, RIPEM distributed without the gmp library was ONLY useful for linking with the GPLed gmp library, and therefore distributing it even without the library put it in violation unless it complied with the GPL.

Unfortunately for him (in my non-lawyerish opinion) contributory infringement requires a direct infringement. Since any user could link the non-GNU RIPEM code with the GNU gmp without violating the GPL (though the user could not distribute that work -- see section 2 of the GPL), there'd be no direct infringement and therefore no contributory infringement.

I don't agree that there's no difference between the GPL and the LGPL if dynamic linking is "mere aggregation"; the LGPL certainly makes things more convenient, if nothing else. But it seems inescapable to me that if you can set up a "firewall" API between your code and the GPL-covered code, then you can create code which uses the GPL-covered code without itself being covered by the GPL. It doesn't even matter if APIs are copyrightable -- if they are, you simply build a separate API of your own, GPL that, then use that in your proprietary code. Since your object code will include none of the GPLed work except for references to your API, it isn't a derivative of the GPLed work and therefore is not subject to the GPL.
Re:It's not good guys vs bad guys... by argent · 2004-10-03 14:04 · Score: 1

That's an interesting interpretetion, and I'd already thought about using a double-cutout for the interface problem, though I was thinking of using a GPL-compatible but non-GPL license for the cutout API.

Contributory infringement is still dancing too close to the devil for my liking. If something so nebulous is contributory infringement, then the DMCA-related nonsense that's being used against open source is legitimate as well. I'm comfortable with a mixed software economy, with both open and closed source code in use. I'm not comfortable with anything that makes it impossible to interface open and closed source code legally, and I don't think there's any way to defend the GPL against cutouts that doesn't, one way or another, amount to endorsing everything the LPF was formed to fight.

You have to choose, and I choose the RMS of the LPF over the RMS of the FSF.

[Insert reference to RAW's letter to S I Hayakawa]

Lets see where everybody stands by SpiffyMarc · 2004-10-02 06:35 · Score: 1

Outrage, outrage!

What if someone were to write an open-source daemon that would allow me to use the Music Store interface in iTunes to access their own version of it, where they got all the money instead of Apple, or noone got any money (free fileswapping.) Would Apple be right to intervene with the DMCA?

Re:Lets see where everybody stands by ScrewMaster · 2004-10-02 07:07 · Score: 1

That's not a comparable situation, you know. If you're going to try and make a point with analogy make sure it's actually an analogy.

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The higher the technology, the sharper that two-edged sword.
Re:Lets see where everybody stands by JamesTRexx · 2004-10-02 08:00 · Score: 1

That would be knowingly stealing from them, which is different from using what you payed for the way you want to.
They don't steal money from Blizzard, they just want to be able to play a multiplayer game where ever they want to, not having to use an internet connection. Like some other already posted, they even asked Blizzard for help with implementing a cd=key check, but they were turned down.
I think if I owned Blizzard, I'd want to let as much people play (buy and use) my games as possible. (think lanparties and such)

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home

Some wiggle room? by BrotherZeoff · 2004-10-02 06:36 · Score: 1

The court seems to hold that the reverse engineering would have been OK if they had never accepted the EULA. So, you can hack if you have never played?

Re:Some wiggle room? by Taladar · 2004-10-02 10:00 · Score: 1

You could hack the Installer of every Game you use to not show you the EULA in case you want to make mods or Server-Emus later.

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Linux is not Windows

Unable to return product by nurb432 · 2004-10-02 06:37 · Score: 1

I agree totally on that point, you should be allowed to view the EULA before opening, and given the option to return.

I think that part would loose in a court , if it was presented via that angle..

The rest, of course would stand..

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Re:Unable to return product by Curunir_wolf · 2004-10-02 08:30 · Score: 1

The rest, of course would stand.
Not really. Read the opinion. Everything is based on that EULA being valid, binding, and not "unconscionable". They stated that the bnetd developers entered a contract wherein they gave up their rights under fair use, and reverse engineering, because they entered a contract with Blizzard.
If there is no way to disagree with the contract, then it becomes unconscionable and unenforceable. If the contract is not valid, then the defendants didn't give up any rights. The entire case would fall apart.

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"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Re:Unable to return product by The+Only+Druid · 2004-10-02 09:43 · Score: 1

You're apparently not aware of what unconscionable means in a legal context. You mistakenly say that the bnetd developers couldn't leave the contract, implying that there's something wrong with that: no one can ever leave a contract, except by (a) completion of the duties involved or (b) breach of the agreements therein. The bnetd developers left by breach of contract, but the price of breach of contract is damages. Alternately, they could have destroyed their copy of the software, and left by completion of duties (i.e. by terminating the reciprocal duties engaged in the contract, the contract is completed).

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"Stumble before you crawl"
Re:Unable to return product by Curunir_wolf · 2004-10-02 13:18 · Score: 1

You're apparently not aware of what unconscionable means in a legal context.
Well, IANAL, but unconscionability of a contract is spelled out pretty well in the ruling, which it's seems you did not bother to read. To quote:
Procedural unconscionability focuses on factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.
They then go on to state that the defendants had a "choice", and, that they had 30 days to excercise it. The ruling goes on:
The defendants also had access for up to thirty days to read over the EULA and decide if they wanted to adhere to its terms or return the games. ... Therefore, the Court finds that the licensing agreements were not procedurally unconscionable.
So, it's not about leaving the contract, it's about whether the contract was ever valid in the first place.
I noticed another pretty awkward contradiction in the ruling as well. They rule on the validity of the contract based partly on the UCC, and state that "the court assumes ... that the games constitute goods under the UCC". But then they go on to state that "the defendants did not purchase Blizzard software, rather they purchased a license for the software." They thus deny the defendants protections under the "first sale doctrine". But if it's a license and not goods, how can they apply the UCC. It seems the court is trying to arbitrarily apply double standards: it's goods if it benefits Blizzard, but it's a license if it benefits Blizzard! WTF??

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"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Re:Unable to return product by maximilln · 2004-10-02 15:48 · Score: 1

The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.

That sounds like every employee agreement I've ever entered into.

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+++ATHZ 99:5:80

A clickthrough EULA isn't unconscionable ... by 3seas · 2004-10-02 06:39 · Score: 1

Maybe not, however clicking thru a EULA doesn't mean I was conscious of its contents, but only that I clicked thru it.

Then there is the pre-click-thru, the set up.

Was the EULA long and in a small windows, difficult to read?

Then there is the pre=pre-click-thru.... as mentioned by other posters/comments that in order to get to the possibility of click-thru EULA, you have to have already bought it and perhaps without ability to return it once you get to the choice.

Sooooo, as a matter of convience, we can ignore all the pre-click-thru unconscionable things that lead up to it???

A non-sequator (sp?)...

Damnit..... first they get you being unconscious and all of the sudden expect you to be conscious.... Sounds like the salesman task of getting you to say "yes" ..... so he can build up to selling you something you don't really want or need...

I wonder what would happen... by Garabito · 2004-10-02 06:39 · Score: 1

if an important number people starts buying the last tittle from Blizzard and then returning it because they don't agree with the EULA...

Boycott Blizzard? by Anonymous Coward · 2004-10-02 06:39 · Score: 1, Insightful

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.

Re:Boycott Blizzard? by NanoGator · 2004-10-02 12:17 · Score: 1

"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."

Blizzard's hated blindly here because they used the DMCA to shut down a free service that made their games more fun. Sadly, the little detail that this also bypassed their anti-piracy measures has been lost in the winds of time.

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"Derp de derp."
Re:Boycott Blizzard? by A1kmm · 2004-10-02 13:45 · Score: 1

Blizzard is bad for appealling, but I think the judge is also partly to blame. The following logic is from the judgement...

The Court finds the EULAs and TOU are enforceable under the UCC. First, the defendants did not purchase the Blizzard software, rather they purchased a license for the software. A sale
consists in the passing of title from the seller to the buyer. Mo. Rev. Stat. 400.2-106(1) (2000).

When defendants purchased the games, they bought a license to use the software, but did not buy the
software. Defendants' argument parallels the "first sale doctrine," although defendants do not use this term.

Under the first sale doctrine, "a sale of a lawfully made copy terminates a copyright holder's authority to interfere with subsequent sales or distribution of that particular copy." Adobe Sys. Inc., 84 F.Supp.2d at 1089 (citations omitted). "The first sale doctrine is only triggered by an actual sale.

Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." Id. Section 117 of the Copyright Act provides that copies of computer programs may be "leased, sold, or otherwise transferred . . . only with the authorization of the copyright owner." 17 U.S.C. 117(b).

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IANAL, but the judge seems very confused here and is clearly interpreting the law in a way which those who wrote it did not intend. First of all, the first sale doctrine has never been intended to apply in the case where copyright itself is transferred. It is always where something is implicitly "licensed" by selling the medium in which it is contained. For example, if I buy I book, I am buying the paper that it is printed on, but I am also being licensed to read the text that is printed on it. There is clearly no difference whatsoever in the case of software, so the judge's distinction here is pedantic and unfair.

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X-Has-Sig: yes
Re:Boycott Blizzard? by fucksl4shd0t · 2004-10-02 18:46 · Score: 1

Sadly, the little detail that this also bypassed their anti-piracy measures has been lost in the winds of time.
Will their anti-piracy measures seek to limit copying when the copyright on the game expires? If not, then they are in violation of copyright and it should be revoked. :)
Copyright is "We'll give you sole rights to commercial exploitation of your work for a limited time, and then you place it in the public domain". "Anti-piracy measures" are "You give me sole rights to commercial exploitation of my work, and I never place it in the public domain".
The two don't work together. So like patent, I think that if you wish to protect your work using methods not provided by law then you should not enjoy legal protection over the work.

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Like what I said? You might like my music
Re:Boycott Blizzard? by NanoGator · 2004-10-02 19:00 · Score: 1

I think I should have written my post more clearly. Sorry about that. I wasn't trying to say that Blizzard should be protected by laws, rather that BNetD didn't have a case to begin with. My understanding of the case has faded with time, but the basic gist as I remember it is that Blizzard was using unique identifiers so that they could ban pirated or disruptive copies of Starcraft etc from playing. BnetD allowed people to set up their own servers that disregarded whether or not the #'s were legit. This meant that #'s off the net would suddenly work. This is the type of thing that the DMCA was developed to thrwart.

Before I go any further, I want to say that I'm not supporting the DMCA here nor am I saying Blizzard was right. (Not really saying they're wrong here either... hopefully that'll be clearer in a moment.) By fighting this, BnetD made the DMCA stronger. The DMCA is so broadly written that they didn't have a strong leg to start on. They should have dropped it and let it go. Now there's a stupid judgement on the books that'll make it even easier to prevent them from trying again with Blizzard's later games.

To summarize my point: Never pick a battle when it appears that you're working to undermine the company who is feeding you.

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"Derp de derp."
Re:Boycott Blizzard? by fucksl4shd0t · 2004-10-02 19:40 · Score: 1

Heh, after rereading your original post, my reply, and then your reply, I'm thinking we're still saying the same thing.
At the heart of my reply is the reason the DMCA is unconstitutional. Article 1, Section 8 of the US Constitution includes this text:
The Congress shall have Power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The DMCA goes outside the boundaries of this power by providing protection for copyright owners that implement a scheme that protects one of the rights of the work perpetually, even after the work itself has entered the public domain. To date I have seen no copy-protection scheme that dealt with that specific issue, yet the DMCA (used successfully as written in this case, as you've pointed out in your thoughtful response) protects copy-protection schemes and provides harsh penalties for breaking them.
I'm not very familiar with the case either, and I'm not a lawyer, but it seems to me that this case has the potential to get the DMCA declared unconstitutional on these grounds if and only if Blizzard's copy-protection scheme didn't deal with the expiration of the copyright. It strikes me as being a pretty strong case if they approached it as protecting Fair Use Rights and ensuring the game will go into the public domain as it's supposed to. They'd have still lost at this stage because it takes SCOTUS to declare the law unconstitutional, so just to get to the supreme court they have to lose the original case and then win a few appeals.
Taken like that, the battle could only be beginning. Or maybe they picked a war and have lost the first engagement (which is required to get the DMCA tossed out by the courts).
So, yeah, my post wasn't responding directly to your meaning, but I think my meaning was responding directly to your meaning. :)
Hey, offtopic, but I recall you work with an animation/film studio? I ran into someone not long ago that's looking for cheap/free post-production tools for independent film makers. She's actually an independent film maker herself. Do you happen to know of any?

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Like what I said? You might like my music
Re:Boycott Blizzard? by NanoGator · 2004-10-02 19:59 · Score: 1

"I'm not very familiar with the case either, and I'm not a lawyer, but it seems to me that this case has the potential to get the DMCA declared unconstitutional on these grounds if and only if Blizzard's copy-protection scheme didn't deal with the expiration of the copyright. It strikes me as being a pretty strong case if they approached it as protecting Fair Use Rights and ensuring the game will go into the public domain as it's supposed to. They'd have still lost at this stage because it takes SCOTUS to declare the law unconstitutional, so just to get to the supreme court they have to lose the original case and then win a few appeals. "

Oh.. oh oh oh that's a good point. I'm sorry, I misread your original post. Well I certainly hope you're right. Unfortunately, I'm not sure if expiration of copyright is what will do it in. I mean, CSS doesn't do that either to the best of my knowledge. I think the line between copyright expiration and restrictions to legitimate users has been blurred. But, I'm not a lawyer as well. The bit about the EULA acceptance being so broad, well that I can see bringing that particular judgement down. I don't know if that'll have ripples with the DMCA or not... perhaps it'll make it more specific?

Eh my mind is muddy tonight.

"Hey, offtopic, but I recall you work with an animation/film studio? I ran into someone not long ago that's looking for cheap/free post-production tools for independent film makers. She's actually an independent film maker herself. Do you happen to know of any? "

Yep, that's me. Right now I'm working on an animated movie at a small studio. Unfortunately, I don't know if I have a very good answer to your question. My immediate suggestion would be to look at CinePaint. Sadly, I cannot vouch for its feature set but it is free to start with.

If she can scrounge up $1,000 to $1,500, I'd point her here:

http://www.adobe.com/products/dvcoll/main.html

You can get Adobe Premiere and After Effects for $1,000. This includes Encore DVD. It's a pain in the ass to use but a full featured DVD production kit, to the best of my understanding. For the full $1,500 she'd get Photoshop as well which ... well my life has plenty of thank yous to go in Photoshop's direction.

I understand this is nowhere near free, but man she'd have a hell of a toolset for an indpendent filmmaker. After Effects (maybe get that seperately?) is a damn fine compositing program. I can't believe all the cool stuff it lets you do. It's very powerful and well thought out. I understand it's not the fastest kid on the block, but I can personally vouch for its robustness.

A friend of mine is 17 and an aspiring film-maker. He managed to get ahold of the production bundle + a DV camera. Now he makes short movies and burns them to DVD with menus and everything. I'm not talking about simple stuff, either. He has virtual sets created in Lightwave blue screened into the footage. Motion and everything. You wouldn't believe it. I don't! Hehe

Sorry if I sound like an Adobe shill here, but AE startled the heck out of me. I dropped about $600-$700 on AE a couple of years ago, I didn't expect it to be such a big part of my pipeline. I'm so used to spending that kind of money for one big important feature, not a whole new toolset.

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"Derp de derp."
Re:Boycott Blizzard? by 91degrees · 2004-10-02 21:35 · Score: 1

There does seem to be some confused logic here. And I really don't see why everyone agrees that a license has been sold rather than a copy. The box says it contains the game, and if it claims it is only a license, will only be in the small print.

Also, although my knowledge of the law is only obtained from a groklaw article on this subject, isn't a license different from a contract? If I agree to a license, I am granted permission withing the limitations. If I breach that license, then I am simply not given express permission to do what is permitted by it. It does not mean breach of contract. It does not mean I cannot do what is expressly permitted by it, unless doing so violates the licensors rights.

But the really strange thing is that the bnetd guys don't seem to have been doing anything wrong. They are allowing people to run their own servers so that people can get more out of the game.
Re:Boycott Blizzard? by brianosaurus · 2004-10-03 10:06 · Score: 1

Boycotting Blizzard is one way for consumers to demonstrate their outrage over these laws.

Blizzard did something, whether within the law or not, that I do not agree with, therefore I will consciously boycott their products. Blizzard is responsible for this decision, precisely because they are the ones who chose to make a contest of it.

Do you think they went into this expecting the law to be overturned? They wanted the decision that was made, they took it to court, and they made it happen.

Now that its out there, boycott their asses. Let them be an example to the government, and to other companies, of what consumers think of the DMCA. Then maybe something will happen.

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I agree with most of your sentiments... by rsilvergun · 2004-10-02 06:40 · Score: 1

but if this gives you a woody, you have issues. Now this on the other hand...

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Re:I agree with most of your sentiments... by Pig+Hogger · 2004-10-02 06:55 · Score: 1

but if this gives you a woody, you have issues.
Eeeeewwww! He starts to look like Bill Gates!!!!

EULAs by Sloppy · 2004-10-02 06:41 · Score: 4, Insightful

There is some new and very radical stuff in this decision. Read it!

Basically, they upheld EULAs. Once you legitimize EULAs, then anything goes. So the Fair Use, DMCA, etc. aspects of this case are relatively uninteresting.

First, the defendants did not purchage the Blizzard software, rather they purchased a license for the software. A sale consists in passing of title from the seller to the buyer. .. When defendants purchased the games, they bought a license to use the software, but did not buy the software. ... Defendants did not produce sufficient evidence demonstrating that title and ownership of the games passed to them.

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.

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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.

Re:EULAs by rpdillon · 2004-10-02 06:53 · Score: 4, Interesting

This is not new. I used to game on a Kaypro PC back in the late 80's and I played a flight sim called "Jet". I was quite young (10-11) and I asked my dad (who *is* a lawyer) how much the game had cost (there was the main game plus add-on packs that added scenery). He replied with the amount and I think I said something like "Wow that's a lot of money just to own the game." He then sat me down and explained something:

"You're not buying the game. You're buying a license to use the game on this computer. So you don't own it, and you cannot do anything you want with it. You *do* own the disk that it's on, but you don't own that data. See what I mean?"

I understood at the time only somewhat, but my dad was good to explain, because I still remember that.

My position to this day is that while I do own the disk (cdrom, whatever), I *paid* for the license to use the software; the disc should essentially be free. So this ruling is not merely a "technicality" based on ownership. The judge understood the principle my dad had explained to me. This is not new - this principle has been at work at least since the mid 80's.

IIRC, I think my dad actualy pulled out the piece of paper that was the license and explained bits of it to me.

This of course does not address what the license *says* or whether it can take away certain fundamental rights like fair use.
Re:EULAs by Sloppy · 2004-10-02 07:37 · Score: 1

I didn't meant to say the idea is new, just that it's new in law (which is really just a euphemism for saying that it's not mentioned in the law anywhere).

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As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Re:EULAs by ShawnDoc · 2004-10-02 07:40 · Score: 1

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.
Actually, most software distributors won't ship you software unless you agree to their terms. One of those terms is that the retailer cannot return opened software to the distributor for a refund. Hence why stores won't allow you to return opened software.
Re:EULAs by myowntrueself · 2004-10-02 09:12 · Score: 2, Interesting

Its a bizarre situation.

One interpretation I make is that if a EULA is a contract, then anonymously clicking through the EULA is equivalent to signing the contract and that therefore anonymously clicking a button in a dialog box is legally equivalent to a signature.

There has to be something very, very wrong with that...

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In the free world the media isn't government run; the government is media run.
Re:EULAs by Tim+C · 2004-10-02 11:21 · Score: 2, Informative

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.

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It's official. Most of you are morons.
Re:EULAs by Trepalium · 2004-10-02 16:17 · Score: 1

The same holds for owning a book. You own the paper, but not the organization of the words on that paper. However, in the case of the book, the doctrine of first sale still applies.

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I used up all my sick days, so I'm calling in dead.
Re:EULAs by Vash_066 · 2004-10-02 18:12 · Score: 1

hmmm..does this mean that someone can only shop lift the lisence of the Software since the store doesn't actually own the box?
Re:EULAs by The+Pim · 2004-10-03 06:57 · Score: 1

There is some new and very radical stuff in this decision.

This was already sort-of answered, but let me reiterate: No, it's not. IANAL, but to me, this looks like a very conservative statment that copyright code and case law, read narrowly, favor Blizzard. The judge essentially, and IMO conspicuously, declined to consider any new issues in this case. It sounded to me like he was expecting an appeal and just wanted his ruling to establish the laws and precedents, on which a higher court might build new interpretations.

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The evaluation of an action as 'practical' . . . depends on what it is that one wishes to practice.

You call THAT cynical? by Shazow · 2004-10-02 06:42 · Score: 1

" Call me cynical but really it will get a lot worse before it will get better."

Things will get better? Pfft, I call you optimistic!

So, what's the problem? by Pig+Hogger · 2004-10-02 06:43 · Score: 2, Insightful

The DMCIA is an US law, and it only affects 5% of the population.

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".

Re:Plain Engrish? by cliffwoolley · 2004-10-02 06:44 · Score: 1

An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS.

Though IANAL, I suspect this is incorrect: you can't implicitly assign copyright. It has to be done by a specific kind of document that very explicitly lists the particular copyrighted items being transferred and so forth. Refer to various Novell court filings in SCO v. Novell for details.

This is Just a District Court by Royster · 2004-10-02 06:45 · Score: 2, Informative

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.

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If they won't give you a refund... by rollingcalf · 2004-10-02 06:47 · Score: 3, Interesting

If you buy it, stop installing at the EULA, and attempt to get a refund within the 30 days but are refused, that should void the contract.

So go ahead, buy it, open it, and return it. If you get back your money, fine. If you don't get back your money, the agreement is broken by them and you can do whatever you want.

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There is inferior bacteria on the interior of your posterior.

Re:If they won't give you a refund... by CTho9305 · 2004-10-02 07:10 · Score: 1

If the license is void, does that mean you now have no rights, and any use would be a violation of copyright? Isn't that the argument people use to justify the GPL - if it's invalid, you can't use/distribute the software at all?

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My server
Re:If they won't give you a refund... by rollingcalf · 2004-10-02 07:20 · Score: 1

Copyright doesn't stop you from using what you already obtained legally. It only stops you from distributing additional copies.

Violating the GPL doesn't stop you from using the software. It would only forbid *distribution* of additional copies, and under copyright law you don't have any distribution rights anyway.

So if they voided the EULA by failing to uphold their side of it, you would still be able to use the software according to normal copyright law (which allows resale, fair use, etc.).

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There is inferior bacteria on the interior of your posterior.
Re:If they won't give you a refund... by nmos · 2004-10-02 07:40 · Score: 1

Of course the counter to your arguement is that in order to "use" software you must copy it and therefore any "use" is a copyright violation unless you have a valid licence. Not that I agree with that mind you but that seems to be the rationale.
Re:If they won't give you a refund... by NotoriousQ · 2004-10-02 07:54 · Score: 1

Except that would be covered by fair use. Since the contract was broken by them, you never agreed to waive that right.

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badness 10000
Re:If they won't give you a refund... by Richard_at_work · 2004-10-02 08:45 · Score: 1

No, you cant do whatever you want. The EULA is between you and Blizzard. Returning the goods to the point of sale is between you and the vendor. If you dont agree with the EULA, and the vendor refuses your returns, that does not invalidate the EULA at all, any more than it invalidates copyright or any other part of law. There is the potential that you can take legal action against hte vendor for refusing a valid request for a refund, but apart from that, your post is pure bad conjecture.
Re:If they won't give you a refund... by Forbman · 2004-10-02 10:32 · Score: 1

Mmm... if the terms of the EULA say that "if you do not agree to the terms of this agreement, take it back to your software vendor and get a refund". To me, that establishes the retailer as an agent of the publisher. Failure to take the software back means to me that the contract is not being honored.
Re:If they won't give you a refund... by atcurtis · 2004-10-03 03:31 · Score: 1

Here is an idea to eliminate overreaching EULAs...

1. Purchase expensive software from a software retailer famous for extravagant markups.
2. Rip open the packaging in a frenzy of excitement. You are permitted to do this on the retailer's premises if desired.
3. Get as far as the EULA on installation.
4. Phone their (freephone) support for clarification. Go over every single clause on the 'contract' at least 5 times.
5. Decline the 'contract' and abort the install.
6. Demand that the software house refund you in exchange for the license. You do not have to do a thing, just wait for the money to come back because you only want a refund on the license.
7. When it comes to the packaging and CD... "What? I have to return that too? Can't you pick it all up? I already threw it all in the trash, I'll go and dig it out... Should be fine, I'll pick off all the pizza bits."
8. If they complain about the packaging, say that the EULA did not stipulate anything about the condition of the items not covered by the EULA. ie: the packaging and shipping media.
9. Goto step 1.

Now I have a plan.... I just need enough money to complete step 1.

Ahh well... one of the sayings that I live by: If it isn't worth paying the ticket price, it isn't worth using. The last 3 operating systems I purchased were from IBM but open-source satisfies most my needs now.

I am a great supporter of copyrights but EULAs and software patents leave a bad taste.

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-- The universe began. Life started on a billion worlds...
-- Except on one where stupidity was there first.

Re:Plain Engrish? by arkanes · 2004-10-02 06:48 · Score: 5, Informative

This especially pisses me off because a lot of the current form of fair use (especially right of first sale) exists because book publishers tried to do exactly the same thing, thus eliminating the market for used books. It didn't fly then, why the hell does it fly now? Software publishers don't need EULAs! Copyright law provides all the protection and rights they need to work effectively. Harsher EULAs don't inhibit piracy - a pirate will violate an EULA even faster than he'll violate copyright, and with far more moral legitimacy. The ONLY thing EULAs provide to the software industry is the power to control consumers and the market and thats a crock of horseshit.

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.

Re:Plain Engrish? by CantGetAUserName · 2004-10-02 06:50 · Score: 3, Insightful

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.

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Semper en excreta sumus solum profundum

The Linux Game Tome by Colin+Smith · 2004-10-02 06:52 · Score: 1

http://www.happypenguin.org/

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This is insane by HangingChad · 2004-10-02 06:52 · Score: 2, Interesting

Saying you can waive your rights with a contract that you don't have any ability to object or note disagreements. No recognition that local laws might apply that make some portions unenforcable or voidable. It's insane, which seems to be becoming the norm more often than not.

Unfortunately it has been established you can waive a lot of your rights in an employment contract, but at least you get to read that before deciding to take the job. In some cases you may even be able to negotiate changes. I've done that. But a EULA there's no place to note objections and no way to get a refund if you don't agree. That's not a contract, that's a hostage. Either agree to these terms or else you're out the money and you don't get to use the software.

I don't care about the legalities and the law, that ruling doesn't pass the common sense test. I agree EFF should appeal. Hostage taking in America, whether it's done with guns or EULA's should be illegal.

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That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage

Why Blizzard got pissy by 0x0d0a · 2004-10-02 06:54 · Score: 1

What did they do wrong anyway? Adding value to Blizzard's games?

They removed control from Blizzard.

Blizzard wanted to become an application service provider. This is a great position for a vendor to be in -- they get a subscription-based payment model (Blizzard, thus far, hasn't charged in money, but only in information about users), can cut off their service at any time, can tie new products into their service, provide tiered service, and so forth. This works as long as they are the sole provider of Battle.net. If someone else comes along and implements a daemon that can provide the same service, Blizzard loses their monopoly.

Frankly, there isn't a lot of economic justification for Blizzard's stance -- I won't be buying any Blizzard titles in the future (though, as others have pointed out, a few people here and there aren't likely to make much of a dent in Blizzard's bottom line, and most don't care). The bnetd/Blizzard lawsuit is the most obvious example of large-company-squashes-existing-volunteer-open-sou rce-project-to-make-more-money that I can think of.

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May we never see th

Re:Ummm... by entrigant · 2004-10-02 06:57 · Score: 1

It is your reasoning that is off. Bnetd was created to allow LAN games over TCP/IP. Bnetd even asked blizzard for help implementing cd key checking and blizzard pretty much said get lost. Not wanting to use blizzards servers and the lag that comes with them for a pure LAN game does not make you a bad guy.

I read it and it makes me sick! EULA = Contract by Proudrooster · 2004-10-02 06:57 · Score: 3, Insightful

In a nutshell, ALL YOUR RIGHTS ARE BELONG TO US..

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!

Re:I read it and it makes me sick! EULA = Contract by Sweetshark · 2004-10-02 10:28 · Score: 1

What if a third party installed the software?
What if he buys two games and accepts just one EULA, and reverse engineers the other one? The idea of writing a letter with the "i dont accept the license and you can pick up the game at my place and give my a refund" content is appealing....
Re:I read it and it makes me sick! EULA = Contract by mrchaotica · 2004-10-03 17:09 · Score: 1

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?
You know the worst part? Blizzard's cease-and-desist letters killed Freecraft (a client, or at least part of what would be required for one) too!

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"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

Bnetd fills a market by wastingtape · 2004-10-02 06:58 · Score: 1

If there wasn't a market for a battle.net alternative, would bnetd have ever been written? Battle.net for Starcraft, if i remember correctly, had two primary problems: (1.) lag and lots of it (2.) immature jackasses. If battle.net had worked like it should have, and at least had some moderation to it, i wonder if a market for bnetd would have ever arisen.

That's not to shift away blame from those who used bnetd to run a pirated copy of the game, but bnetd did provide a service to Starcraft clubs and leagues who just wanted to play Starcraft lag free and without interruption.

From reading the article it seems as if Blizzard's main beef with bnetd was the fact that it ignored the CD checking algorithm of the login sequence (largly because that algorithm was probably proprietary). Sadly it seems as if all the code is now illegal instead of just the module used for authentication. I wonder if .NET's web services (or whatever Java or linux's equivalent are) would ever aid 3rd party developers maintain anti-piracy within thier applications. I supose you'll always have someone who wants to be "free" by leaving it out...

Re:Bnetd fills a market by ScrewMaster · 2004-10-02 07:15 · Score: 1

And how much do you want to bet that Blizzard had or has plans to release a similar product and just didn't want the bnetd program in the way? There's certainly precedent for using the DMCA as a way to squelch competition and interoperability. What irritates the hell out of me is that some members of Congress warned that passage of the DMCA would have unintended side-effects such as this, but the bastards passed it anyway.

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The higher the technology, the sharper that two-edged sword.

Re:Ummm... by Cecil · 2004-10-02 06:59 · Score: 1

an application whose primary use is to allow people with pirated versions of Blizzard games to play them online = good guys.

That's it's primary use? Gee, I didn't see that anywhere in the documentation. So, do you run your email through hotmail? After all, I've been told that the primary use of running your own mail server is to receive pirated software through attachments.

Innocent until proven guilty, okay? If I wanted to create my own Neverwinter Nights server that didn't use AD&D 3rd Edition rules (something that I do actually want to do, but don't have the time for) should I really be legally barred from doing that because I may use it for piracy?

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Random and weird software I've written.

Backups probably *AREN'T* fair use! by isaac · 2004-10-02 07:00 · Score: 4, Interesting

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

Who says backups are fair use?

There are four factors that judges use to make a fair use determination under copyright law:

The "transformative" factor - have you added any value to, or transformed, the original work? Consider a parody - the original is transformed - or the case of commentary, research, or education where the original work is the subject of commentary or used to illustrate a port. A backup copy of software does not transform the original work - indeed, the whole purpose of the backup is to make an exact (or functionally exact) copy of the original.
The nature of the copyrighted work - it is considered a public good to disseminate factual information. Your software might contain facts (e.g. an encyclopedia on CDROM), but you're simply duplicating the original work, not excerpting and disseminating its factual content. This goes to the next point,
The amount and substantiality of the portion taken. In the case of a backup, you're copying the entire work. Backups fail this test, too.
The effect of the use upon the potential market. By making a backup of your software, you are potentially depriving the copyright owner of a second sale in the event your original media are destroyed or otherwise rendered unreadable.

Any rational analysis of these rules suggest that backup copies are not, in fact, fair use of copyrighted work under the present code and caselaw. Sad, isn't it?

-Isaac

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I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.

Re:Backups probably *AREN'T* fair use! by Cynikal · 2004-10-02 08:22 · Score: 1

this makes me think of alot of questions.. if i were to rewrite bnetd and "change the words" to the point of perhaps making fun of blizzard, but having the server function exactly the same but all the words inside it be altered, could it legally be immune under the same way a parody is?

i mean no where have i seen legal rulings stipulating that a parody must be funny, or even the humor involved needing to apeal to all parties involved. as long a "i" think what i did was funny, it counts right?

seriously, someone should try this... if i could code in anything but VB i would definately do it. i dare one of you to do this, maybe its the loophole we're looking for.
Re:Backups probably *AREN'T* fair use! by cpt+kangarooski · 2004-10-02 09:00 · Score: 1

Of course, for copies of software you own (as opposed to license) no court would ever answer the question. 17 USC 117 takes care of it explicitly.

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-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Re:Backups probably *AREN'T* fair use! by optimus2861 · 2004-10-02 14:17 · Score: 1

Who says backups are fair use?

They don't have to be fair use. They're not infringing. Or at least they weren't -- I think the judge in this case just completely gutted Section 117 of copyright law by saying end-users don't actually own their (copies of the) software. Anyway, the relevant text is this:
(a) Making of Additional Copy or Adaptation by Owner of Copy. -- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

(Open question as to whether or not possession of the archival copy remains "rightful" in event of the loss of the original copy, but if it isn't what's the point of declaring the archival copy non-infringing in the first place?)

Re:Plain Engrish? by 0x0d0a · 2004-10-02 07:01 · Score: 3, Insightful

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.

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May we never see th

Re:Ummm... by tekunokurato · 2004-10-02 07:02 · Score: 1

When the VCR and the Betamax were invented in the early eighties, there were no "legitimate" uses for them--nobody sold products for them aside from blank tapes, the only use of which was to "steal" broadcast television.

It takes time, and technologies should not be vilified because they do not *yet* have a legitimate use. Legitimize the technology and you'll get something like the $20 billion dollar domestic home video market, the single most profitable chunk of the US film industry.

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Read jack phelps dot net

Re:Ummm... by CantGetAUserName · 2004-10-02 07:02 · Score: 1

I believe that way the law lies currently, 'probably most people are doing bad things with it' is not sufficient justification to ban a piece of software. I do seem remember a recent court case about that. Also, the case was not fought on those grounds, IIRC, but rather from a perspective of legality of EULAs, which as standard seem to ask the poor bastard installing to cede rights they'd have on a £10 piece of crap from a toy store.

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Semper en excreta sumus solum profundum

Re:Ummm... by arkanes · 2004-10-02 07:04 · Score: 1

Got any facts? Your other points are well taken but I seriously doubt that most bnetd users are pirating Blizzard games. It's not like there's a whole competing system, bnetd is for local (lan) games over the internet, like when you want to play with a couple friends without the crappiness that is Battle.net. I don't know anyone who uses bnetd to play pirated versions - I don't even know anyone with a pirated version of a Blizzard game, even the people who have (lots) of other pirated games.

Re:Plain Engrish? by EvilSporkMan · 2004-10-02 07:05 · Score: 3, Insightful

That's not a boycott. That's screwing Blizzard in the ass and some probably illegal (copyright violation / fraud (?)) shenanigans.

Real boycott howto:

Don't buy Blizzard products.
Make sure all your friends follow steps 1 adn 2.
???
Consumer power grab!

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-insert a witty something-

One ream to rule them all... by DigiShaman · 2004-10-02 07:07 · Score: 1

...legal documents that is.

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Life is not for the lazy.

Re:Ummm... by 0x0d0a · 2004-10-02 07:07 · Score: 1

Exactly. We should also ban all P2P apps (they are, after all, used most commonly by pirates), the Internet (same reason -- most bandwidth is devoted to illegal content), web servers other than IIS (Microsoft made a server for their client, dammit, and nobody else has a right to horn in on their market by providing alternate implementations -- just like bnetd is an alternet Battle.net implementation).

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May we never see th

No the big problem is... by NigelJohnstone · 2004-10-02 07:08 · Score: 5, Interesting

"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).

Re:No the big problem is... by Fnkmaster · 2004-10-02 08:40 · Score: 5, Insightful

Well, I am not sure, but there's no fundamental reason I can think of that they can offer you a contract of adhesion with onerous terms to escape from it after the fact, whereas you can't do the same to them. Contracts are by definition bilateral agreements, and contracts of adhesion are unilateral offers, and there's no reason only a seller can impose such a contract. So your tactic seems to show some promise as a way to effectively protest EULAs and force jurisprudence or industry action to reconsider this strategy for infringing on fair use rights.

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.
Re:No the big problem is... by AaronGTurner · 2004-10-02 10:51 · Score: 2, Interesting

If they can impose terms after the sale on you, you can impose terms after the sale on them.
When you buy an item (in the UK at least) your contract of sale is with the retailer, not the manufacturer. Here the manufacturer is imposing terms on you for the installation of the software which is an explicit contract between you and the manufacturer, but not one that is based on financial exchange since you are not paying the manufacturer: your retailer does this. So in the UK you would be within your rights to refuse to agree to the EULA but it would be very much up to the retailer to decide what to do in terms of a refund. I don't know how similar it would be in th e USA.
If you don't agree to the EULA you have no contract of any form with the manufacturer, just the retailer, which in turn has a contract related to the sale with the manufacturer. Thus you can only influence the manufacturer via the retailer.
Re:No the big problem is... by Gentlewhisper · 2004-10-02 12:30 · Score: 1

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.

Along the same vein.. but i believe that contracts do not apply to minors, since they are not legally allowed to enter into contracts.

Why not buy software in your kid's name instead!

Software publisher don't like it? Tough.

"This is my kid's computer, I'm just using his computer to do work"

"Yeah, this box of VS.net is bought for my 3 year old kid"

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Online backup with Mozy, sounds like Ozzie, but more!
Re:No the big problem is... by Tony+Hoyle · 2004-10-02 12:45 · Score: 1

However in the UK the EULA probably isn't binding anwyway (we have no DMCA, and the legal status of these things is unclear - some have been held to be invalid in the past as they're not true contracts) and things like the right to reverse engineer are enshrined in european law and can't be removed (in a limited sense, by licensed users and for interoperablity only, but it's far from the lockin hell that is US law).
Re:No the big problem is... by Eraser_ · 2004-10-02 12:50 · Score: 1

This could turn funny.

Go to the store to purchase a video game, you do enjoy playing a fun video game in your spare time. Hire a contract-law lawyer to advise you on such purchases and wether their contracts allow you to exercise your fair use rights.

Social engineer your way into knowing when Best Buy's franchise team, some "higher up" is going to be going through the store and stage software-opening. Go through the line with a title and demand to be able to open it and view the contract before you sign your credit card slip. Get a manager to come since the register person is likly not going to care/have a clue what you're demanding. Make sure your lawyer audibly reminds you to check the EULA inside the box.

When the manager comes and likly lets you step out of line to read the contract (or throws you out of the store...) hand it to your lawyer. Reject or edit the license as you see fit, ad infinitum. Do it audibly but not overly loud such as to cause them to eject you from the store for that reason alone.

Go to Comp USA, Gamestop, anywhere that sells games and keep it going, it might help to call some news paper friend of yours, and maybe a lawyer who owes you a favor or likes a good laugh on the weekends.
Re:No the big problem is... by maximilln · 2004-10-02 15:43 · Score: 1

Contracts are by definition bilateral agreements

Heh. You haven't seen my employee agreement.

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+++ATHZ 99:5:80
Re:No the big problem is... by Brian+Boitano · 2004-10-02 16:10 · Score: 1

What if you were to copy the files across to your disk without running the installer provided with the software. Does the EULA still bind you?

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What would Brian Boitano do?
Re:No the big problem is... by AliasTheRoot · 2004-10-02 18:49 · Score: 1

But in the UK, retailers have to provide a refund if a product is found to be of unmerchantable quality, I beleive it is a statutatory 30 day requirement.

I feel you could argue quite strongly that a product that you purchase with no indication of legal constraints on usage turns out to have an EULA that you dont agree to, and there was no indication of the existance of such conditions at time of sale was in fact of unmerchantable quality.

If enough people bought game x, then took it back and demanded a refund stating unmerchantable quality and the EULA in particular, you can be sure the retailers would take notice and exert pressure on the publishers to remove them (or place them somewhere more readily viewable).

Given that the retailers absolutely have the publishers over a barrel, i'm certain this would be an effective form of boycott.

You can also go into a store, and ask the manager whether something has a EULA attached to it. If they say no and it does then they misrepresented the product to you and can get a refund, get it in writing tho. If they say yes, then inform them that you are unwilling to purchase software with unknown conditions attached and ask them to feedback it to head office.
Re:No the big problem is... by MntlChaos · 2004-10-02 19:55 · Score: 1

Heh. You haven't seen my employee agreement.

You get paid, right?
Re:No the big problem is... by AaronGTurner · 2004-10-02 20:19 · Score: 1

True. I was just basing my comments about what I knew of the law here as that is what I know.
Re:No the big problem is... by AaronGTurner · 2004-10-02 20:38 · Score: 1

But in the UK, retailers have to provide a refund if a product is found to be of unmerchantable quality, I beleive it is a statutatory 30 day requirement.
No statutory requirement, just a "reasonable time" with what this is not being defined. What is defined is that the retailers have responsibility for defects in the product up to a limit of 5 years (England and Wales) or 6 years (Scotland) (or it might be the other way round!). You may be required to pay for the repair, and they don't have to offer it beyond a reasonable lifetime for the item, and you have to contact them about the defect as soon as you discover it. So a £1 wrist watch that has an expected lifetime of about a week or something but you should resonably expect the availability of a repair service via the retailer of your Rolex for the full 5 years.

I feel you could argue quite strongly that a product that you purchase with no indication of legal constraints on usage turns out to have an EULA that you dont agree to, and there was no indication of the existance of such conditions at time of sale was in fact of unmerchantable quality.

In the EU (including the UK) such EULAs have been deemed to have no legal binding anyway.

My argument was that if the system of purchase contracts in the USA is similar to that in the UK then, as you say, put pressure on the retailers by returning goods and demanding refunds if the EULA is unacceptable. You can't complain to the manufacturers directly (and they might not listen to you) but if there is a groundswell affecting the retailer than a large retailer may be able to put effective pressure on the manufacturer.
Re:No the big problem is... by maximilln · 2004-10-02 20:55 · Score: 1

You get paid, right?

And the bnetd devs got a nice plastic coaster.

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+++ATHZ 99:5:80
Re:No the big problem is... by Krach42 · 2004-10-03 07:02 · Score: 1

Well, with Apple it's obvious. They say in their EULA that you bought their CD, but not the software on it. You thus own the CD, and physical material and can do what ever you want with it... as long as it doesn't infringe on the softare's EULA agreement to install it on one (1) Apple labelled computer.

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I am unamerican, and proud of it!
Re:No the big problem is... by Anonymous+Custard · 2004-10-05 11:22 · Score: 1

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.

Beautiful! I'm going to start doing this...

I'll try to get a lawyer friend to write up something short and official, then I'll provide it on a website in PDF for anyone to download and use.

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$8.95/mo web hosting
Re:No the big problem is... by VendettaMF · 2004-10-10 20:41 · Score: 1

Personally I had a cat for several years who would regularly stroll across the keyboard.

I never had to repeat the install more than three times before the cat would manage to agree to the Eula.

Now, this may be pushing it a bit, but I'd really like to see Blizzard get the cat to testify in court...

(Apologies to Scott Adams for the mangling of his joke).

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kartune85 : Incapable of reason, observation or learning. A kind of dim, drab, flightless parrot.

Re:Plain Engrish? by CantGetAUserName · 2004-10-02 07:09 · Score: 1

Ugh. Explicitly. I can type, honest.

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Semper en excreta sumus solum profundum

District Court -- Not That Big of a Deal by ortcutt · 2004-10-02 07:09 · Score: 2, Insightful

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.

One word by ScrewMaster · 2004-10-02 07:11 · Score: 1

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.

Hm ... a certain company in Redmond (or is it Seattle) would find this decision remarkably convenient.

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The higher the technology, the sharper that two-edged sword.

Civil Disobediance by CedgeS · 2004-10-02 07:12 · Score: 1

Who has a .torrent of bnetd source code, documentation, etc.? I'll join.

Cedric Shock
888 E 18th Ave Apt 8
Eugene, Oregon 97401
(541) 343-6640

Re:Civil Disobediance by Seraphim_72 · 2004-10-02 13:45 · Score: 1

May all your endeavors be blessed. Thank You for being a rebel :)
Sera

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Slashdot, where armchair scientists get shouted down and armchair theologians get modded up.

First Sale Doctrine by rollingcalf · 2004-10-02 07:12 · Score: 1

The Supreme Court case that clarified the First Sale Doctrine had to do with sales of books.

Those book sales do not require any formal "title and ownership" in order for the First Sale Doctrine to be applicable. You pay your money, you walk out with the book, and the sale is complete; you own that copy of the book and can do anything with it except what is normally prohibited under copyright law.

What it is about software that causes it to be a "license" that requires additional "title and ownership" before First Sale rights can be exercised, when books don't have that restriction? Especially when the sale has already taken place before any agreement waiving those rights was presented to the customer?

This case has so many holes, I can't see how it can stand up to appeal. Unless the appeal judge(s) also smoke crack, like the judge in this case.

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There is inferior bacteria on the interior of your posterior.

Re:First Sale Doctrine by ScrewMaster · 2004-10-02 07:17 · Score: 1

Probably not crack. More like Ecstasy, which is what he would have had to be on to have been happy with this decision.

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The higher the technology, the sharper that two-edged sword.
Re:First Sale Doctrine by myowntrueself · 2004-10-02 09:19 · Score: 1

"This case has so many holes, I can't see how it can stand up to appeal. Unless the appeal judge(s) also smoke crack, like the judge in this case."

Well sure, remember that crack costs money. You don't think the judges go out and buy their own crack do you?

No, they have to cultivate good relationships with wealthy corporations so that they will buy the judges crack for them...

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In the free world the media isn't government run; the government is media run.
Re:First Sale Doctrine by Forbman · 2004-10-02 10:28 · Score: 1

It also applies to pre-recorded music media: compact discs, tapes, records, etc.

In the late 80's, a group of artists, including Garth Brooks, tried to go after The Warehouse and other large retail outlets to try and stop them from reselling used CDs. It failed. First Sale doctrine applied, and could not be waived.

Re:Plain Engrish? by tekunokurato · 2004-10-02 07:14 · Score: 2, Insightful

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...

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Read jack phelps dot net

Holy Smokes by spottedkangaroo · 2004-10-02 07:15 · Score: 1

This makes me really mad. So, I sent another $25 over to the EFF. Money is obvioiusly the only vote I have that matters. It's therefore best to send it to the right people.

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Imagine if you weren't allowed to use roads because a bus company complained about your driving 3 times. --skunkpussy

does this effect users of bnet software? by blackest_k · 2004-10-02 07:16 · Score: 1

firstly
What has been reverse engineered the game or the server?
It seems they have reverse engineered a server not the game have they produced a game that works with the battlenet server?

secondly
For anyone else but the defendants they are not guilty of reverse engineering anything are they?

battlenet is made available is purely an option for users of the software.
where does it state you have to use battlenet servers clearly using it on the net is optional.
I think users of the alternative server system are not guilty of reverse engineering anything.

thirdly has it been proved that the EULA was agreed to within 30 days of purchasing the software.

IF the software was purchased and not opened for 31 days then surely it isn't possible for you to avoid a 1 sided agreement since the 30 day time period had already passed.

fourthly who agreed to the EULA anyway
If I install the software on your machine then surely you never agreed to the EULA.

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Blarney Quality Restaurant, Plants

Re:Same legal principles in GPL and open licenses by Ph33r+th3+g(O)at · 2004-10-02 07:16 · Score: 1

The only reason GPL rests on current copyright law is that in order for the GPL to be invalid, so must be copyright. It certainly isn't because any love on the part of RMS or the FSF for copyright. If copyright didn't exist, there would be no need for the GPL to protect free software.

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I too have felt the cold finger of injustice.

But you don't BUY GPL'd software by NigelJohnstone · 2004-10-02 07:17 · Score: 1

There's no purchase when you obtain GPL'd software, there's no *sale* as such.

So your not paying for a set of rights and then having your purchase rights taken away from you afterwards.

Re:OT, sorry by glpierce · 2004-10-02 07:20 · Score: 3, Informative

"How about shays (chaise) lounge?"

It's "chaise longue," not "chaise lounge." "Longue" means "long," "chaise" means "chair."

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G

DMCA was enacted under interstate commerce clause by smiff · 2004-10-02 07:23 · Score: 1

In the 321 Studios case, the court ruled that the DMCA was enacted under the interstate commerce clause. With that being the case, where does congress find the authority to regulate a program developed by hobbyists and given away for free?

From page 34 of the ruling, "The bnetd emulator had limited commercial purpose because it was free and available to anyone who wanted to copy and use the program". Does that make sense to anyone?

Re:Linux Zealot! by bushda · 2004-10-02 07:24 · Score: 1

LOL

Nope on the satan worshiping and bible banning - correct on everything else. ;)

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There are two seasons in my world - Hockey and Construction

Can I be expected to seek professional advice by NigelJohnstone · 2004-10-02 07:27 · Score: 1

'An EULA is an enforcable contract as long as it is not too "one-sided" or "unconscionable"'

How do I know if its not one sided or unconscionable without professional legal advice?

How can I be expected to obtain professional legal advice for every pissy little purchase!

If you don't stop it here and now everything will come with a seal and EULA, not just software EVERYTHING. Break the seal and you agree to the EULA, there's no difference between clicking to accept and EULA, and breaking a seal.

"Clickwrap should NOT enforcable contract law!"

Totally 100% agree.

Solution by geeveees · 2004-10-02 07:27 · Score: 1

You only agree to the EULA when you click the "I Agree" button right? Could this be the start of 3rd party (possibly, Open Source) installers for games, applications, ...?

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I am a viral sig. Please help me spread.

Re:OT, sorry by dmayle · 2004-10-02 07:30 · Score: 1

Merriam webster, online:

Voila

Either get a better dictionary, or get an unabridged one. You're information is what's lacking...

Pretty devastating ruling by Fnkmaster · 2004-10-02 07:31 · Score: 4, Interesting

This ruling is wrong on many fronts, and it is devastating to the software world as a whole if these interpretations were to be considered precedent. Here's a summary of the relevant parts of the decision itself:

The decision acknowledges that an EULA is a contract of adhesion, but rejects that prohibitions against investigation or reverse engineering of a product are unconscionable terms and thus the fact that it's a contract of adhesion is irrelevant (they partially base this on the fact that the party to this dispute was smart enough to reverse engineer the product, and thus should have known well enough to read and understand the terms of the EULA, unlike a normal user - no, I'm not kidding on this).

They then go on in the next section to state that fair use rights don't apply here since the EULA waives them - again, they've already asserted that there is nothing unconscionable in the EULA, and they fail to consider whether waiver of fair use should be considered unconscionable in a contract of adhesion, they just assert it indirectly (basically their argument states by implication that Joe Average doesn't care about his fair use rights, and thus their prohibition in a contract of adhesion is not a radically unexpected or unconscionable term and is thus PERMITTED).

As for EULA terms constituting copyright misuse, they don't really make any assessment to speak of other than to say that this may be an affirmative defense to copyright violation, but that portion of the case has been dismissed already, and this doesn't have much to do with the fact that there was a contract formed by the EULA.

With respect to the DMCA, the court rejects completely the notion that 1201(f) (the reverse engineering exception in the DMCA) is applicable unless the relevant party has permission to circumvent it. This makes no sense, since even the DMCA doesn't state that, they infer it from another case. In essence, they interpret the word 'use' in the DMCA to mean 'use as permitted by the EULA', and thus breaking the EULA contract now AUTOMATICALLY means you are no longer permitted to take advantage of the reverse engineering exception of the DMCA under any circumstances, regardless of your intention to circumvent copyright.

The next part - where they find that they state that bnetd was not an 'independent program' according to the DMCA is completely wrong. They say it fails to be independent because it replicates features from the existing server program created by Blizzard. This is a definition of 'independent program' that only the most twisted logic could accept.

As to their overall conclusion that the defendents were trafficking in a circumvention device as defined by the DMCA, they come back to their rejection of the reverse engineering defense - since they reject that, and have already stated that the action of creating bnetd constitutes 'copyright infringement' (meaning presumably violation of the DMCA), there can be no doubt that it is a cirumvention device (though they don't seem to address section E(2)(A) directly - what was the primary purpose of the device).

I understand that it's hard to argue that the primary purpose of Bnetd wasn't to allow circumvention of copyright, and on that point I can understand where the court's hands are tied by the poor legislation. The rest of this decision is filled with misunderstanding, misinterpretation and half-truths.

Anyway, this was a quicky analysis and I'm sure I missed stuff in here, so feel free to correct or add to this where I made mistakes.

Re:Pretty devastating ruling by Anonymous Coward · 2004-10-02 07:38 · Score: 1, Interesting

"The next part - where they find that they state that bnetd was not an 'independent program' according to the DMCA is completely wrong. They say it fails to be independent because it replicates features from the existing server program created by Blizzard. This is a definition of 'independent program' that only the most twisted logic could accept."

This is actually EXACTLY the sort of ruling SCO would need....
Re:Pretty devastating ruling by myowntrueself · 2004-10-02 09:24 · Score: 1

"The decision acknowledges that an EULA is a contract of adhesion,"

So that means that its a contract that doesn't require a signature? Or does the anonymous click in the dialog box now count as a signature under law?

--
In the free world the media isn't government run; the government is media run.
Re:Pretty devastating ruling by mark-t · 2004-10-02 09:57 · Score: 1

This is a scary proposition, since my cat has been known to click my computer mouse from time to time when he walks across my desk.

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File under 'M' for 'Manic ranting'
Re:Pretty devastating ruling by NigelJohnstone · 2004-10-02 10:25 · Score: 1

"(they partially base this on the fact that the party to this dispute was smart enough to reverse engineer the product, and thus should have known well enough to read and understand the terms of the EULA, unlike a normal user )."

Counter argument: Legal smarts aren't programming smarts. Can the Judge write code? No? Then is it reasonable to assume the EULA was understood, let alone read?
Re:Pretty devastating ruling by Lehk228 · 2004-10-02 17:31 · Score: 1

what is this clicking you are talking about? i have a script running that automatically detects "i agree" buttons and clicks them, that way the contract is only binding to that script and not to me.

--
Snowden and Manning are heroes.
Re:Pretty devastating ruling by myowntrueself · 2004-10-02 21:27 · Score: 1

"what is this clicking you are talking about? i have a script running that automatically detects "i agree" buttons and clicks them, that way the contract is only binding to that script and not to me."

That should be built into Windows

--
In the free world the media isn't government run; the government is media run.

hilarious... by Sophrosyne · 2004-10-02 07:32 · Score: 1

do you think this is 1980 or something?...
Backups are illegal!!
You keep up this behavior and I guarantee a squad of psychiatrists will lobotomize you for your anti-social behavior.

What about the case of minors? by NigelJohnstone · 2004-10-02 07:38 · Score: 1

Another point:

A legal minor isn't capable of entering into a contract. If a child installs the software, how can they have been considered to have accepted an EULA?

Re:What about the case of minors? by maniac+trek · 2004-10-02 09:31 · Score: 1

I believe that if an adult supervises, or clicks the I accept button for the minor in question, that is legally binding to the child's guardian, or something like that. Like I ever got my mom to click a stupid button for me.

GPL != EULA by StupidKatz · 2004-10-02 07:38 · Score: 2, Informative

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.

Re:GPL != EULA by StupidKatz · 2004-10-02 11:06 · Score: 2, Insightful

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.
Re:GPL != EULA by mdfst13 · 2004-10-03 07:46 · Score: 1

"if all EULA-style agreements (a textfile included with the software)"

No one is claiming that a textfile included with the software is incapable of offering an agreement. The claim is that you cannot be bound by said agreement merely by receiving it with the software. The GPL works by a much different mechanism. If you choose to accept the GPL agreement, then you may redistribute the software. If you refuse the license, then you may not (unless you negotiate a separate agreement). The problem with a EULA is that it doesn't offer you anything that you don't already have. If you legally obtain a copy of the software, you don't require a license to use it.

It is also worth noting that someone could in fact make a perfectly legal EULA by the simple expedient of having the customer sign the EULA prior to paying for the software. In that case, one can limit the transfer with whatever conditions one wants. The problem here is that users are told that they are only renting the software *after* paying for it. It would be like going to Wal-Mart, picking up a $20 movie and when you put it in your DVD player, it said "By clicking Yes, you agree to our license agreement, which says that you are only renting this movie. Don't forget to return the movie tomorrow."

You can't change a purchase agreement to a rental agreement unilaterally. You can offer someone an agreement that offers some rights in exchange for concessions.

Re:Plain Engrish? by Anonymous Coward · 2004-10-02 07:45 · Score: 2, Insightful

While I agree this is illegal, this issue is where warez came from in the first place. If you bought a game or software, put it on your machine and it didn't work, they would say too bad, package is opened. This is ridiculous... so the warez crowd hacks the program, puts it up for people to try, then they should buy it if they use it. There's no way I would pay $300 for a used photoshop 6 if I wasn't sure it was gonna work on my machine. I tried the warez version, it worked, I bought photoshop. I've had many store bought and warez programs that simply wouldn't run on my hardware.. shit gets deleted, company doesn't get any money and I look for something else.

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?

Re:Plain Engrish? by mrbcs · 2004-10-02 07:47 · Score: 1

Go sign up for free webhosting somewhere. Read how the site will claim copyright on your website.

--
I'm not anti-social, I'm anti-idiot.

Re:Same legal principles in GPL and open licenses by Weird+O'Puns · 2004-10-02 07:52 · Score: 2, Insightful

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

it sucks but... by McBeer · 2004-10-02 07:52 · Score: 2, Interesting

I dislike the stupid software restriction just as much as the rest of you, but I can really see where blizzard is coming from on this one. I would wager that over 99% of people using the bnetd service are doing so with pirated copies of Blizzard's product. While bnetd in and of itself does not harm Blizzard, it does greatly add to the enjoyment of piracy which does hurt Blizzard. (and hey, fear not, you can still use a VPN to play cracked copies with your friends)

--
Hikery.net - The best hiking site ever. Made by yours truly.

Re:Hah.. by imroy · 2004-10-02 07:53 · Score: 1

Your post was marked as a troll and flamebait because you misrepresented the goal of the bnetd project. And that misrepresentation also happened to coincide with what the "bad guys" were portraying. And now you're trying to play the victim and turn the blame on Slashdot. Whatever. You said something stupid and was modded down. Get over it.

Yes they are by Solandri · 2004-10-02 07:54 · Score: 5, Insightful

4. The effect of the use upon the potential market. By making a backup of your software, you are potentially depriving the copyright owner of a second sale in the event your original media are destroyed or otherwise rendered unreadable.

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.

Re:Yes they are by isaac · 2004-10-02 12:03 · Score: 2, Interesting

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.

Right.
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.

Sorry? The software manufacturer is likely to differ on that point. You still have your license to use said software. That you have lost your installation media is your problem, not the manufacturer's problem.
As another poster pointed out, 17 USC 117 grants an explicit right to backup copies of software you own. But of course, since consumer software companies claim to confer no such transfer of ownership at time of sale, this clause is ineffective.
I think it sucks, too. The twisted logic that makes walking into a store, plunking down your cash, and walking out with a box somehow "not a sale," or that makes contractual terms presented unilaterally after the offer and acceptance (i.e. the EULA) somehow binding is going to totally eviscerate most consumer protection laws in this country once manufacturers of other goods twig to it.
-Isaac

--
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
Re:Yes they are by careykohl · 2004-10-02 18:43 · Score: 1

Sorry? The software manufacturer is likely to differ on that point. You still have your license to use said software. That you have lost your installation media is your problem, not the manufacturer's problem.
But isn't this the crux of the whole argument? If it's *MY* installation media then you *SOLD* it to me. It's mine and you have no rights to impose additional conditions on me after the sale.
On the other hand if you claim it wasn't a sale at all but a *LICENSE* transaction, then I must be using *YOUR* installation media. If you won't replace it when it becomes damaged then I'm free to obtain it from anywhere I please without paying another license fee.
That's the whole problem with EULA's. They want the best of both worlds without having to assume any of the risks.

Re:Plain Engrish? by UfoZ · 2004-10-02 07:56 · Score: 2, Insightful

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.)

Blizzard has a right. by ssand · 2004-10-02 07:57 · Score: 1

I feel Blizzard are indeed the good guys in this. Their Bnet (the real one) Requires an authentic key to be used, ensuring people who purhcased the game to play. What BnetD allows people with a pirated version to play, and that's pretty much all.

Publicizing EULA Online by technix4beos · 2004-10-02 08:00 · Score: 1

One possible solution I see to this problem is creating an online database of EULA's from various offending products.

Consulting this database before making your purchasing decision would be a prudent venture, I feel.

Is this viable?

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user@host$ diff /dev/urandom /dev/uspto

Re:Publicizing EULA Online by Anonymous Coward · 2004-10-02 08:17 · Score: 2, Funny

One possible solution I see to this problem is creating an online database of EULA's from various offending products. Consulting this database before making your purchasing decision would be a prudent venture, I feel.

Is this viable?

No, it's against most EULAs.

Also, I notice your username is technix4beos, so a word of warning. If you would look at the BeOS EULA, you would see that you are forbidden from publicly mentioning any opinion of the software or the company, Be Incorporated. Since all that's left of Be is a couple lawyers looking for something to sue, I would not recommend mentioning BeOS on the web, even though..

Hold on, there's someone at the door.

It seems to me... by Anonymous Coward · 2004-10-02 08:01 · Score: 1, Interesting

that since these guys have agreed to the EULA and TOU, they're screwed.

Here's what I don't understand, though:

Section 1201(f)(1) provides a possible defense to plaintiffs' anti-circumvention claims. Section
1201(f)(1) provides:
Notwithstanding the provisions of subsection (a)(1)(a), a person who has lawfully
obtained the right to use a copy of a computer program may circumvent a
technological measure that effectively controls access to a particular portion of that
program for the sole purpose of identifying and analyzing those elements of the
program that are necessary to achieve interoperability of an independently created
computer program with other programs, and that have not previously been readily
available to the person engaging in the circumvention, to the extent any such acts of
identification and analysis do not constitute infringement under this title.

They then go on to say,

The statute, however, only exempts those who obtained permission to circumvent the technological measure, not everyone who obtained permission to use the games and Battle.net.

(emphasis mine)
Can't the judge read?

Re:Plain Engrish? by Jane_Dozey · 2004-10-02 08:02 · Score: 1

umm....a EULA falls under copyright. End User Licensing Agreement. It's just a software license, plain and simple. It grants you rights to use the software (just as the GPL or BSDL do). Just because it's a harsh and very restrictive license doesn't magically mean it's no longer a document pertaining to copyright.

--
Silly rabbit

Re:Plain Engrish? by Anonymous Coward · 2004-10-02 08:05 · Score: 2, Funny

Cooooooool...

One less person to add to server load on the opening day of WoW. Your loss buddy.

Incredible! by Hamster+Lover · 2004-10-02 08:06 · Score: 1

Only an examplary law student would begin his comment with a disclaimer. You are well on your way to a sucessful law career. :)

But what people don't realize... by Hybby · 2004-10-02 08:07 · Score: 2, Interesting

Bnetd is open source.

The bnetd team wanted to get the cdkey checking software. They would impliment this into their source. Thus Blizzard's cd key checking software AND algorithms are out in the wild.

Does no one else see a problem with this? This means that people can re-code it using the algorithms in there and create keygens. Not just any keygens, but real keygens to create real keys, ones which can be allowed onto battle.net.

Now not only does this completely go against Blizzard's policies, but it also takes away from their sales. They lose... completely. So yes, it was a GREAT idea that Blizzard didn't give them that cold.

Silly /.'ers, not even thinking along that security line.

Re:But what people don't realize... by mousse-man · 2004-10-02 10:51 · Score: 1

Hmmmm....why in the hell didn't Blizzard use public-key cryptography then so they could check the signature of a key wanting to access battle.net? Or having the dnetd servers register with Blizzard, and have them issued a public key which they could use to verify the authenticity of the game keys?

Ah, of course, they'd possibly export strong cryptography to Lybia.
Re:But what people don't realize... by Todd+Knarr · 2004-10-02 13:17 · Score: 1

Public-key cryptography. Keys are generated using the private half of a key pair which only Blizzard holds. The checking routine has the public half of the pair needed to validate keys, but since it never needs to generate a key it's got no need for the private half. The whole point of public-key cryptography is that given only the public key it's infeasible to generate the matching private half, so having the source for the checking routine including the neccesary public key doesn't let you generate any new keys.

Re:Plain Engrish? by karmatic · 2004-10-02 08:07 · Score: 4, Informative

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.

Re:Plain Engrish? by Anonymous Coward · 2004-10-02 08:11 · Score: 1, Interesting

Technically superior doesn't mean more fun. I had a copy of Total Annihilation before I got hold of Starcraft, and I found it extremely boring, and gave up on it after a few days of play. I'm still playing Starcraft to this day. Most of my friends have pretty much the same opinion (the one dissenting opinion is someone who wrote TA fanfiction, go figure).

Return post EULA read pricing... by Glove+d'OJ · 2004-10-02 08:21 · Score: 1

Would not this be a way to protest?

An organized group could go out, buy the software at the most expensive price they could, then wait 29 days, and mass return... kind of like a flashmob, but political.

And if you were to have a receipt that said that you bought the software at $100.00 that was a created by scanning and photoshopping your $50.00 receipt, who am I to say what is right and what is wrong...?

Re:Return post EULA read pricing... by daVinci1980 · 2004-10-02 19:25 · Score: 1

And if you were to have a receipt that said that you bought the software at $100.00 that was a created by scanning and photoshopping your $50.00 receipt

Then that would be fraud.

--
I currently have no clever signature witicism to add here.

EULA vs GPL by greggman · 2004-10-02 08:26 · Score: 1, Interesting

It seems to me that if the GPL can be enforced then so can EULAs and if EULAs can't than neither can the GPL.

In both cases they are agreements between the creator of some software (or the creator's representatives) and some consumer (someone who wants to use the software). Both list restrictions on what you can do. You either agree with them or you are not allowed to use the software.

The only technicallity would be that EULAs are sometimes inside the package meaning you can't read them before you open the package but that's just a technicallity. If it was outside the package I doubt any of the people in question would have acted any differently whatsoever.

Re:EULA vs GPL by Todd+Knarr · 2004-10-02 08:43 · Score: 4, Informative

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).
Re:EULA vs GPL by greggman · 2004-10-02 11:10 · Score: 1

I don't see it that way

The GPL basically says "You can use this software under these terms. (1) You can't hold us liable for problems it causes (2) if you modify it you have to distribute those mods under the same license" If you don't agree to those terms you are not allowed to use the software.

EULAs might be more restrictive but they are basically the a form of the same thing.
Re:EULA vs GPL by argent · 2004-10-02 11:15 · Score: 2, Informative

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.
Re:EULA vs GPL by sybarite · 2004-10-02 12:00 · Score: 1

This case exemplifies while the ideals of the Free Software Foundation are critically important. Unless people support and embrace Free Software, more and more onerous terms will accompany software. If some have their way, all we will have available is DRM embedded hardware and software where the use of the software is metered out like a utility.
Unfortunately, I don't think most people care enough to fight for their rights by avoiding non-free software.
Re:EULA vs GPL by sir99 · 2004-10-02 17:59 · Score: 1

Read the GPL before spouting off:
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.
The GPL is a redistribution license, permitting you to do things which you otherwise legally couldn't. Whereas EULAs purport to be contracts, pertaining to use of the software and restricting fair-use rights.

--
The ocean parts and the meteors come down
Laid out in amber, baby.
Re:EULA vs GPL by Eric119 · 2004-10-02 18:35 · Score: 1

No. The GPL does not place any restrictions. All it does is remove some already existing ones. The restrictions on using GPLed software do not come from the GPL, but copyright law. And of course you don't have to agree to the GPL to use GPLed software.

A EULA tries to place restrictions on you. You (supposedly) must agree with the EULA to even use the software.

Re:Plain Engrish? by sploo22 · 2004-10-02 08:27 · Score: 1

But I already have those rights. Copyright law restricts distribution, preparation of derivative works, and public display or performance. It DOES NOT RESTRICT PERSONAL USE. If I don't agree to the license, I still have the right to use it for whatever I want.

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Karma: Segmentation fault (tried to dereference a null post)

Plug due: Ditch whatever you're Bnetting... by Qbertino · 2004-10-02 08:29 · Score: 1

... and join BoS so we can finish a cool OSS 2D RTS Game. I just joined the other week.

--
We suffer more in our imagination than in reality. - Seneca

Makes me mad! But I can't pirate World of Warcraft by Anonymous Coward · 2004-10-02 08:30 · Score: 1

This bothers me enough to not support Blizzard from now on. Except with World of Warcraft, which I'll be buying, because I can't play with a pirated copy. However, I've pirated all my copies of Blizzard games up to this point (primarily due to not having the money to spend on every game I want to play). I'll just justify my buying of WoW by pointing that out, and resolving to never purchase a game from them in the future that I'm able to pirate.

Re:Ummm... by HeghmoH · 2004-10-02 08:32 · Score: 1

Most people use computers to use pirated software. You don't need a majority of people to use something for legitimate purposes, you only need substantial non-infringing use. Bnetd has that.

--
Mod down posts with a "Free Mac Mini/iPod" sig, they're spam!

We need to bypass the EULA by Todd+Knarr · 2004-10-02 08:37 · Score: 4, Interesting

I think the case that needs brought isn't one based on the enforceability of an EULA. In all but a handful of states sales are governed by the terms of the Uniform Commercial Code and there's no exception for software. If the seller didn't make you sign an agreement before or when they accepted your money and gave you the goods, the UCC defines the terms of the sale and the rights you and the seller have after the sale. What we need is a case brought on the grounds "I bought this software. No other agreement was demanded at the time of the sale, so the terms of sale are those of the UCC. Since I declined the after-the-fact EULA and it's changes to the terms, what it says is irrelevant and the terms of the sale remain the terms of the sale at the time it was made. Judge, either make them justify their case under the terms of the sale or make them stop harrassing me by demanding I adhere to terms that aren't part of the contract.". This would really damage the case of companies like Blizzard, probably fatally. It'd also put them in the position of either having to forget about enforcing those unreasonable terms in the EULAs or require every mass-market sale to be preceeded by paperwork neither the customers nor the stores would find acceptable.

Re:We need to bypass the EULA by optimus2861 · 2004-10-02 14:05 · Score: 4, Insightful

What we need is a case brought on the grounds "I bought this software.

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.
Re:We need to bypass the EULA by Todd+Knarr · 2004-10-03 04:18 · Score: 1

True, but his ruling was based on the user's acceptance of the EULA which has terms saying you only bought a license to use. The UCC doesn't have any such language in it, and software companies will have a hard time arguing that they aren't selling copies of the software when what's delivered is a copy of the software. More importantly, there's case law under the UCC to say that the software companies are wrong and it isn't merely a license to use that they're selling when they're accepting money for and turning over physical copies.

Title 117 would also be mostly irrelevant, since such a case wouldn't involve the distribution of more copies of the program, except for the clause that says that copying a program that you legally own a copy of into memory for the purpose of running it is not a violation of copyright.

They already tried changing the rules via the UCITA. Let's haul them back to reality and say "If the state meant the terms of the UCITA to apply, they would've enacted the UCITA into law. They didn't.".
Re:We need to bypass the EULA by optimus2861 · 2004-10-03 05:00 · Score: 1

True, but his ruling was based on the user's acceptance of the EULA which has terms saying you only bought a license to use.

I know. I can't help but wonder about the quality of bnetd's lawyers here. It doesn't make any sense to my admittedly non-legalthink mind that Blizzard could've won this argument. Consider: I walk into the store, I pick up the game off the shelf, I pay the clerk, transaction completed, I walk out. At this point I have not agreed to any EULA; I haven't even seen it yet, and there's a chance I don't even know there is an EULA, if it isn't on the box and the clerk doesn't tell me. So what did I just buy if not a copy of the software? How did the judge get from that state to "you only bought the license"?
If any other industry tried to get away with a stunt like that, I would think a judge would tell them to get bent, and the attorney general might very well haul them into court for false advertising or somesuch.
Re:We need to bypass the EULA by Todd+Knarr · 2004-10-03 06:35 · Score: 1

The problem is that the bnetd guys said they clicked on the "I agree" button and didn't ever say they rejected the license. At that point the judge has to work under the terms of the license, and it said you were just purchasing a license to use. That's why it's critical to start with an explicit rejection of the EULA, forcing things back under the default terms of the UCC. Then you proceed with "Under this clause of the UCC, if the seller attempts to deny me use of the product I bought after the sale I'm allowed to do these things to obtain use of what I've bought.". This is where you'll want a lawyer specializing in the UCC, but in general you can do what you need to make use of the goods you bought so long as you don't damage the seller's property in the process.

Do what I do by earthforce_1 · 2004-10-02 08:39 · Score: 3, Interesting

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.

--
My rights don't need management.

Re:Do what I do by Anonymous Coward · 2004-10-02 09:00 · Score: 1, Insightful

>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.
Re:Do what I do by jonabbey · 2004-10-02 10:02 · Score: 3, Interesting

Yeah, but if you leave aside the 'paying the 12 year old to click the button' part, where is the flaw here? If Blizzard et al really want the EULA to be a contract, that implies that 12 year olds cannot, of their own accord, install their software, plain and simple.

Or is it simply that they want a right to have their EULA given force without regard to tort law?

--
- jon

Ganymede, a GPL'ed metadirectory for UNIX
Re:Do what I do by earthforce_1 · 2004-10-02 11:50 · Score: 1

IANAL either, but it was told to me by one during a class on contract law. At least in this country, minors cannot be held to a contract, even if signed and witnessed. To the best of my knowledge, EULAs and minors are uncharted legal waters.

--
My rights don't need management.
Re:Do what I do by NGShake · 2004-10-02 13:57 · Score: 2, Informative

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.

Re:Plain Engrish? by Harinezumi · 2004-10-02 08:40 · Score: 1

Doesn't copyright affect only one's ability to copy and distribute intellectual property? Doesn't that mean that someone who legally purchases software has the legal right to do whatever they want with it, as long as they do not copy or distribute it?

After all, you can take GPL code, modify it, and never release the modifications as long as you do not distribute the code beyond your own machine(s). How is this different? How can opening packaging which you have purchased and is therefore your private property, or clicking on a button on a machine that you own be considered a legally binding contract in which you relinquish rights given to you as a consumer under the copyright law?

SC the Better game? Ugh. by Atragon · 2004-10-02 08:56 · Score: 1

By 'better game' do you mean 'rock paper scisors'?

I don't understand how someone could possibly consider SC to be better. Lower res, smaller maps, the same interface as WCII...but rotated to the bottom. *BLEH*

Re:SC the Better game? Ugh. by damiam · 2004-10-02 09:31 · Score: 1

The res and mapsize are technical issues. The gameplay itself consists of the races, units, balance, combat, that sort of thing. IMHO (and the opinion of many others, apparently), Starcraft trounces TA and every other RTS (including Warcraft III) in those areas.

--
It's hard to be religious when certain people are never incinerated by bolts of lightning.
Re:SC the Better game? Ugh. by mdfst13 · 2004-10-03 06:51 · Score: 1

"Starcraft trounces...Warcraft III"

I think the same of WC2 (same engine as SC) vs. WC3. The little details like having Alleria kill a catapult by shooting it from just outside the catapult's range or using Kerrigan *alone* to beat an entire level are especially memorable levels from the expansion sets of those two games. I have no similar memories of WC3. The closest was playing Optimus Prime in one of the bonus games.

I still like playing Moria for that matter. Graphics suck compared to any other role playing game, but I enjoy playing it.

P.S. I hope your previous post pops up on my metamod so that I can mark the flamebait unfair.
Re:SC the Better game? Ugh. by hkmwbz · 2004-10-04 00:32 · Score: 1

WC2 does not have the same engine as SC.

--
Clever signature text goes here.

Re:Plain Engrish? by Anonymous Coward · 2004-10-02 08:56 · Score: 1, Informative

You mean "continue to boycott Blizzard"

Not just Blizzard, but everything Vivendi.

Yes, that means no Firefly for me.

so stop purchasing from Blizzard by maxpublic · 2004-10-02 08:57 · Score: 2, Insightful

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?

Vote with your feet by rmassa · 2004-10-02 09:01 · Score: 2, Insightful

Remember, the only real power that the customer/consumer has is choice. I just sent this, and everyone else who is complaining should too.

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.

Re: Plain Engrish? by Rhsqueak · 2004-10-02 09:01 · Score: 1

Quote "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." OK, I am not a Lawyer, but Judge Shaw ruled that the fact a user may waive his/her right to reverse engineer the software that he/she has purchased is not an unreasonable request for the software company to make. He was in fact very specific on this point. ""Substantive unconscionability focuses on the actual terms of the agreement." Pardee, 123 Cal. Rptr. 2d at 295. It traditionally involves contract terms that are so one-sided as to "shock the conscience" or that impose harsh or oppressive terms. Id. The terms of the EULA and TOU in this case do not impose harsh or oppressive terms." This is from Page 23 of the decision. Again I am not a Lawyer, but giving Microsoft the rights to everything I write on their software would certianly quallify as "harsh or oppressive terms" in my mind and in the minds of every lawyer and judge that I know. There are terms of this decision that trouble me (regarding my ownership of the copy of the software that I paid hard earned money for) but agreements not to reverse enginner products and non-disclosure agreements are common and legally recognized. This decision is not a start down any slippery slope, lets not get paranoid about it.

--
"Any man who says he can see through women is missing a lot" Groucho Marx

Re:Plain Engrish? by Audacious · 2004-10-02 09:02 · Score: 1

It didn't fly then, why the hell does it fly now?

Got a few billion dollars? I can show you how to pass any law for a few billion dollars. :-)

This is why I've stopped buying anything from software companies. I only work with open source software games anymore. :-)

Believe me when I say, if all of the little children of the world stopped buying software for a day the industry would notice. If all of you stopped buying software for a week their stocks would plumit. If you did it for a month they'd go belly up. Remember the coffee tax? I believe it was the late 1970's. Coffee prices kept going up and up and up and then everyone just said fine - we aren't going to buy it anymore. Oh, not everyone stopped, but enough people did that the price for coffee fell by half within a week.

Don't like what the industry is doing? Stop playing along with them. They'll get the message really quick. Or they will go out of business really quick.

Try it. Set the week of Thanksgiving as the week where no one will buy any computer software whatsoever. Just a week. See what happens. Remember - Thanksgiving - let them give thanks that you are willing to buy their software.

--
Someone put a black hole in my pocket and now I'm broke. :-)

Re:OT, sorry by Wholeflaffer · 2004-10-02 09:14 · Score: 1

As long as we're all being anal retentive about this:

You're information is what's lacking

Actually, it's 'Your information...'.

"You're" = "You are"

and

"Your" is possessive second person.

After all this, I think I'll strive to become more anal expulsive in the future.

--
Certified Microsoft Notworking Specialist

OK layer boy (to be) by gr8_phk · 2004-10-02 09:24 · Score: 1

What makes the "I agree" button binding? The EULA. What makes the EULA binding? The button. We have a circular problem here.

What if I disagree with the eula? Now I want to reverse engineer the software or for whatever reason want to see what happens when I click the "I agree" button? If I don't agree with the terms of the EULA, that means that I don't accept the line that says "clicking 'I agree' indicates you accept this agreement". Therefore, clicking it doesn't mean I agree.

Just ask the plaintif if they can decisively say weather or not they have a valid contract with the judge. Notice that with EULAs the company apparently enters into contracts with any number of people without even knowing who they are. How absurd.

Re:OK layer boy (to be) by Valar · 2004-10-02 10:07 · Score: 1

Actually, the case law says that the "I agree" button constitutes a form of consent not because of the verbage of the EULA, but because it shows a clear intent to enter the contract. Just like a signature on a traditional paper contract. The button is labelled, so you know what you are doing when you click it-- agreeing to the EULA. That's the legal standard. It is actually immaterial whether the company knows who they are in contract with. Actually, legally, you form a contract with a company everytime you leave a store with purchased goods. Even if you pay cash and they have no idea who you are.

--

====
Crudely Drawn Games
Re:OK layer boy (to be) by Tim+C · 2004-10-02 11:25 · Score: 1

Exchange "click the button" with "sign my name", and ask yourself if your idea still seems valid. If not, why should there be any difference between the two?

--
It's official. Most of you are morons.
Re:OK layer boy (to be) by Valar · 2004-10-02 15:15 · Score: 1

"Actually, legally"

So, you were saying?

--

====
Crudely Drawn Games
Re:OK layer boy (to be) by Romothecus · 2004-10-03 03:38 · Score: 1

You CANNOT enter a contract with someone if you have no way of communication. In terms of legal philosophy, this is dead wrong. There is such a thing as a "unilateral offer." Like when Pepsi offers to sell people bottles of Pepsi out of vending machines for $1. They are making an offer. Anyone is free to anonymously accept the offer by putting a dollar in the machine and getting a bottle of Pepsi out. This is a contract, and Pepsi has no idea whatsoever that you entered it with them - and they are still liable for breach of contract. For example, if the Pepsi bottles contains no Pepsi. Or contains poison. Whatever.
The bottom line is that unilateral offers are just as binding as other contracts, even though the parties don't know each other at all.
Your example of the store was flawed because the anonymous contract is with the manufacturer, not the vendor.
Re:OK layer boy (to be) by gr8_phk · 2004-10-03 05:56 · Score: 1

Clicking the button can have 2 effects that are both significant. 1) it could mean you agree with the terms of the EULA. 2) it WILL install the software. To me, the only clear intent is to install the software. It does not compare to signing a contract - which does nothing other than confirm your acceptance of the contract. Intent when signing a contract is a lot more clear than clicking a dual-purpose button. I bet if you did a poll, most people would not even be aware of the "contractual significance" of the button - Ya, real clear.
I never mean I accept the EULA - I just click the button to get software to install. You may ask why I click something that says "I agree" when I don't. That's easy - because it's how I install the software that I bought and own. I have not agreed to not-install it if I don't like the EULA.
If you want a contract with someone, have them sign a contract.
Re:OK layer boy (to be) by gr8_phk · 2004-10-03 05:59 · Score: 1

See my response to my other critic:
Clicking the button can have 2 effects that are both significant. 1) it could mean you agree with the terms of the EULA. 2) it WILL install the software. To me, the only clear intent is to install the software. It does not compare to signing a contract - which does nothing other than confirm your acceptance of the contract. Intent when signing a contract is a lot more clear than clicking a dual-purpose button. I bet if you did a poll, most people would not even be aware of the "contractual significance" of the button - Ya, real clear.
I never mean I accept the EULA - I just click the button to get software to install. You may ask why I click something that says "I agree" when I don't. That's easy - because it's how I install the software that I bought and own. I have not agreed to not-install it if I don't like the EULA.
If you want a contract with someone, have them sign a contract [not install your software].
Re:OK layer boy (to be) by Dyolf+Knip · 2004-10-03 19:35 · Score: 1

Because when you sign a contract there's a physical record that you, YOU, not your spouse or child or neighbor or pet or mechanical appliance or random object on a ballistic path, signed it. Furthermore, they're usually either countersigned and/or printed on some sort of self-authenticating paper or what have you. And when done, both parties walk away with a copy.
Clicking an "I agree" button? Alone, at home, and on my own computer? I could come up with a thousand ways to get past it without my ever actually pressing the button. Half the time the EULA text is stored in an editable text file, which I can replace to my heart's content. And if it doesn't, I wrote a little app that lets me edit any text box on any running program (and if the installation proceeds with the altered text, the company must be bound to it as well, no?). And even if I didn't do any of that and just clicked the damn thing, there's utterly no record of it. They are assuming that because it was installed, I must have clicked it, but this is demonstrably untrue.
So no, it's no more a binding contract than my putting an statement on a billboard saying "By reading this you agree to ... whatever" and then trying to extract compliance from everone I think passed by it during rush hour.

--
Dyolf Knip

Though Canadians had guns... by Grendel+Drago · 2004-10-02 09:29 · Score: 1

Hmm. I thought Canadians owned guns just like Americans did, but happened not to murder each other nearly as often because they're so gosh-darned polite.

'Course, I'm just vaguely remembering "Bowling for Columbine" at this point.

--grendel drago

--
Laws do not persuade just because they threaten. --Seneca

Re:Though Canadians had guns... by dryeo · 2004-10-02 15:40 · Score: 1

Canadians have traditionally owned rifles, shotguns and other hunting tools. Lately handguns have been showing up in increasing numbers due to the War On Drugs (Guns are traded for dope) and becoming more of a problem.

--
https://en.wikipedia.org/wiki/Inverted_totalitarianism

Re:Same legal principles in GPL and open licenses by myowntrueself · 2004-10-02 09:34 · Score: 1

"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."

If one disagreed with the EULA, took the (opened) package back to the store who refused to take it back and give a refund, wouldn't that void the 'contract'?

--
In the free world the media isn't government run; the government is media run.

So why can't we use this ruling AGAINST blizzard? by Anonymous Coward · 2004-10-02 09:46 · Score: 1, Funny

What's good for the goose is good for the gander, right? I mean, the law cuts both ways. We don't have one law for the rich, and another for the poor. Or one for corporations, and another for lowly netizens.

So if their End-User-License-Agreement is binding, even though we can't see it until after purchase, and even though we can't return our software for a refund (at our own travel/time expense) once we've seen the EULA...

Then why can't we have our own license agreement? Call it a Citizen's Vendor Purchase Agreement.

My CVPA states that:

1) Any agreements presented after money has changed hands are non-binding.

2) Any agreements without my signature on them are non-binding.

3) Any attempt to revoke my rights to use the software I've purchased, including making backups, storage format conversion, reverse engineering, re-use in other software applications, or whatever else anyone can think of, will require the producer [software production house] to repurchase the software from me at the full price I paid PLUS reasonable expenses for my time and energy. I bill my time at $200 per hour, or portion thereof.

4) As compensation for purchasing and using producer's software product, producer will pay me $1,000,000 in U.S. dollars. After all, I am a legend in my own mind.

My CVPA agreement is readily available to any vendor or producer who can be bothered to read it. It's on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard".

Bring a torch. The display department is in the cellar. The lights are out. Come to think of it, so are the stairs...

Re:Plain Engrish? by Ryosen · 2004-10-02 09:50 · Score: 1

>>An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS.

Why stop there? This could just as easily be extended to their programming tools (or Sun's, or Borland's, or Adobe's or....). "Anything that you develop using our tools is copyrighted by us." And I am hoping with all my might that they try and do it. Then this moronic idiocy will be struck down like the fantasic bullshit it is.

Oh, and someone should disbar that putz of a judge.

--

Ryosen
One man's "Troll, +1" is another man's "Insightful, +1".

Quick way around this... by mark-t · 2004-10-02 09:54 · Score: 1

A contract with a minor is not legally binding at any rate. Seems like a good excuse to have children. :)

--
File under 'M' for 'Manic ranting'

Wrong! by ebyrob · 2004-10-02 10:10 · Score: 2, Informative

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.

Others talk game play, you talk eye candy by AHumbleOpinion · 2004-10-02 10:21 · Score: 2, Insightful

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.

Re:Others talk game play, you talk eye candy by Anonymous Coward · 2004-10-02 10:30 · Score: 1, Informative

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.
Re:Others talk game play, you talk eye candy by TrancePhreak · 2004-10-02 14:01 · Score: 1

hahahaha, no... In StarCraft it was all about building as many units as you can and sending them to attack. No real need to control them individually, you used them in groups.

WarCraft is about controlling units individually. That's part of the challenge, but not everyone likes it.

--

-]Phreak Out[-

Re:Plain Engrish? by kronchev · 2004-10-02 10:27 · Score: 2, Insightful

Not everyone is simple enough to be amused by MMORPGs...we lose nothing. Have fun with your lack of a real life.

Blizzard Evil? Probably not. by Anonymous Coward · 2004-10-02 10:29 · Score: 1, Interesting

I don't understand what's so wrong with Blizzard trying to protect their products. A large part of Blizzard's popularity is due to their stable, cheater free servers - that happen to cost nothing extra (with the exception of the upcoming WoW.)

These servers add a lot more online functionality than what is offered by other online games.

If people start using bnetd, Blizzard no longer has control over one thing that differentiats them from other online RTSs.

I understand that the EULA is a bit scary, but without it what could Blizzard use to defend themselves from people like the bnetd developers, or others?

Re:Plain Engrish? by jsav40 · 2004-10-02 10:41 · Score: 1

yeah- the gist of it is running non blizzard bnet server is against the law. The model they (bliz) employ is that the user/char. info is stored server-side which in theory should reduce the potential for cheats/hacks assuming that you are playing on an 'official' server. Worked out pretty well with Diablo II / Diablo II LOD (starcraft etc.) for awhile the games really were *much* better but then things wenttohell(tm) a couple of years ago... I don't know if it ever got any better, I stopped playing after bnet was compromised since it was no fun once folks were able to gain XP + items + skilZ w/ whatever the F* they did. So in short I can't condemn bliz for defending their SW. 'nuf said J

The crux of the problem with the DMCA... by mark-t · 2004-10-02 10:47 · Score: 2, Insightful

I think that the crux of the problem with the DMCA is that even its most avid proponents are completely unable to provide any clear and consistent reasons for it to have ever existed in the first place except for the occurrence of activities which were already very much illegal under plain old ordinary copyright law. Or if they are able to cite any examples at all of activities that ought to be illegal and are explicitly made so by the DMCA, they are unable to explain _why_ such activities should be illegal without entering into direct conflict with other rights and permissions which are granted by fair use and even some property laws.

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'

Re:The crux of the problem with the DMCA... by mrchaotica · 2004-10-03 17:36 · Score: 1

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.
Media "piracy" is not a disease. Copyright itself is a disease! Specifically, it is a cancer. It was designed for the specific purpose of preserving the public domain, and has now been corrupted to cause a result diametrically opposed to that purpose. As such, it should be eliminated. The media companies have twisted the issue and abused their power so much that they no longer deserve to be protected by copyright.

At this point, I believe the answer is civil disobedience. They can destroy the public domain, but they'll have to pry it out of my cold, dead hands first!

--
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

Up the ante tactic by NigelJohnstone · 2004-10-02 10:55 · Score: 1

Perhaps the closing strategy is for enough people to do the 'letter' trick to Blizzard that they can no longer afford the cost of collecting the software from the customers and simply fail to accept your terms.

At that point, use one of the copies they've failed to collect to write BNetd2 and render this stupid idiotic judgement moot.

Alternatively, try upping the ante. You had a reasonable expectation of buying a product. As a result of Blizzards actions not yours (you've bought thousands of things in shops without having your purchase rights taken away) you incurred extra costs.

A journey to the shop, the time+cost of writing a letter, storage costs for their worthless CD. So ask for *more* than the cost of the product.

Re:Plain Engrish? by tepples · 2004-10-02 10:57 · Score: 1

If you bought a game or software, put it on your machine and it didn't work, they would say too bad, package is opened.

Clerk will offer to exchange it for another copy of the same title. Take it and then exchange that. Rinse and repeat until you've sent the title's defect rate skyrocketing.

It's not a copyright license; it's a DMCA license by tepples · 2004-10-02 11:01 · Score: 1

There's no consideration; you supposedly give up your rights, in exchange for *nothing*

Not exactly. You give up your rights in exchange for decryption of the program, a valuable service which only the copyright owner may authorize under 17 USC 1201(a).

Vision impairment by tepples · 2004-10-02 11:09 · Score: 1

Most stores have a policy banning the operation of a camera within them.

Connect the camcorder's output to a head-mounted display. If someone in the store kicks you out, claim that the camcorder plus HMD is a vision correction device (it is) and threaten to take legal action against the store under the Americans with Disabilities Act or your local counterpart.

You don't need source to copy code by AHumbleOpinion · 2004-10-02 11:09 · Score: 1

... nobody modified Blizzard's software. bnetd was an original piece of code ...

If you had been following the case you would have known that Blizzard claims otherwise. I don't think the court has ruled on that point.

... made by people who had nothing to do with Blizzard's IP

Code does not have to be in source form in order to be copied. Copying can be done with just binaries. The GPL would be rather meaningless if this were not true.

DMCA by tepples · 2004-10-02 11:12 · Score: 1

By continuing to install the software after a modified EULA, they are implicitly agreeing to the changes. If they didn't want you to modify the EULA, they should checksum it and refuse to install otherwise.

Many installer programs already hash the EULA. If you crack the installer to disable this hash check, you are breaking 17 USC 1201(a) or your local counterpart.

Re:DMCA by Lehk228 · 2004-10-02 17:19 · Score: 1

but if you modify the stored hash as well as the stored EULA you are not circumventing anything.

--
Snowden and Manning are heroes.

Bull. Read 17 USC 117 by tepples · 2004-10-02 11:17 · Score: 1

To "use" software, you must make a copy, but making this kind of ephemeral copy happens not to be an infringement of copyright. 17 USC 117.

Minors. by NHSheep · 2004-10-02 11:23 · Score: 2, Interesting

Correct me if I'm wrong, but I do believe that in North Carolina a minor cannot legal be held to a contract. So if the EULA is in essence a contract, are minors simply free to do as they wish?

LAN play built into games, you don't need BNet by AHumbleOpinion · 2004-10-02 11:33 · Score: 1

This isn't about them providing servers or bandwidth, it's about people wanting the opportunity to run their own private gameserver just to be able to do multiplayer with their friends.

LAN play is already built into all of Blizzard's games. I think TCP/IP based games (where you know the IP of others you want to play with) are also available in some of the games.

Blizzard games do not work like the FPS games you are familiar with, they do not need servers for multiplayer, they are not strictly client-server. They are generally peer-to-peer. Diablo II is client-server when playing a Battle.net realm based game but peer-to-peer when playing a LAN or TCP/IP game, IIRC.

Re:Holy Jeez! by Aash · 2004-10-02 11:33 · Score: 1

ARRRGH! Modded down again! What the Jeez??

Stopping modding me down, you stupid damn moderators! I'll kill you! I'll kill all of you! Especially those of you in the jury!

--

--
These aren't the droids you're looking for.

Shoplift Apple software then by gsfprez · 2004-10-02 11:38 · Score: 2, Insightful

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.

Re:Plain Engrish? by IgnoramusMaximus · 2004-10-02 11:56 · Score: 1

Ahahahahahahahaha, yeah right." *leaves to buy SC2 and have lots of fun with it*

Yes and he ends up a consumer-sheep-drone who deserves to have anal probes installed by the corporations/securocrats for his own "good". You on the other hand retain integrity and self-respect. And "fun" is all relative, if such things as SC2 are such a big deal to him... small things amuse small minds, I say.

Re:Plain Engrish? by ZorroXXX · 2004-10-02 12:07 · Score: 1

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.

Back in the days when Borland really was best in class for not treating their customers like criminals and did not not cripple their software (like many other companies did), they used the following text (written of my old paper copy of Turbo C Reference Guide (European Version) (for Turbo C 1.0 in 1987)) (the italics and bold not added by me):

Borland's No-Nonsense License Statement
This software is protected by both United States Copyright Law and International Treaty provisions. Therefore, you must treat this software just like a book with the following single exception: Borland International authorizes you to make archival copies of Turbo C for the sole purpose of backing up your software and protecting your investment from loss.

By saying, "just like a book", Borland means, for example, that this software may be used by any number of people and may be freely moved from one computer location to another so long as there is no possibility of its being used at one location while it's being used at another. Just like a book that can't be read by two different people in two different places at the same time, neither can the software be used by two different people in two different places at the same time. (Unless, of course, Borland's copyright has been violated.)

--
When you are sure of something, you probably are wrong (search for "Unskilled and Unaware of It").

40 dollar contract. by nurb432 · 2004-10-02 12:11 · Score: 2, Interesting

I donno.. i entered a contract with my cell phone company for less than that...

Its not the $ amount that matters... its still a contract...

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..

Pulling that trick would only get you in trouble.

If you install, you agree to their terms.. period..

However i agree with you on the return policy.. there should be one, and there really isnt..

--
---- Booth was a patriot ----

Re:40 dollar contract. by Gentlewhisper · 2004-10-02 12:32 · Score: 2, Insightful

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!
Re:40 dollar contract. by Pizzop · 2004-10-06 03:04 · Score: 1

Uh, you are completely wrong, you entered in for way more than $40. Assuming you probably pay $30/month, and are bound to the contract for 1-2 years, it was $360 - $720 contract, not to mention fees, taxes, and surcharges. You also aggreed to pay a fee if you terminate early. So potentially it could be like a $900 contract.

--
How to Speak Leet
Re:40 dollar contract. by nurb432 · 2004-10-06 12:14 · Score: 1

Prepay.. you pay by the month.. ( well actually every other month.. )

Its still a contract..

--
---- Booth was a patriot ----

Re:Plain Engrish? by DavidTC · 2004-10-02 12:14 · Score: 1

Put 'All Rights Reserved' after that and you've got it. That means is that you're explicitly not giving up any rights provided to you under copyright law, so people can't claim some sort of implicit agreement to redistribute it.

--
If corporations are people, aren't stockholders guilty of slavery?

Re:Matlab has always done this. by stephentyrone · 2004-10-02 12:34 · Score: 1

no, they don't: www.mathworks.com/company/agreement.pdf

what they do is say that you can't distribute a product that contains certain bits of Matlab or provides access to the Matlab command line unless you're distributing it to someone who already has a license agreement with Mathworks.

No, the GPL is NOT a USER license! by Xtifr · 2004-10-02 12:57 · Score: 1

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License."

Note that it doesn't say ANYTHING about using the software there! The GPL only affects your rights to modify or distribute the work. "YOU ARE NOT REQUIRED TO ACCEPT THIS LICENSE!" How much more plain can it be?

Re:Ummm... by toddestan · 2004-10-02 13:12 · Score: 1

Justify it all you want -- and hey, some people probably are using bnetd legitimately -- but most people are using it to play pirated versions of Blizzard's games.

Actually, back when I played Diablo II, I used to play on some bnetd servers because they weren't a cesspool like Battle.net is. I know many people did this. And yes, I do have a fully legit copy.

Perhaps Blizzard should of put their lawyers to use making battle.net a better place? Like shutting down all those sites selling duped/hacked items?

Ironic by Pan+T.+Hose · 2004-10-02 13:27 · Score: 1

Some time ago, I have bought a Blizzard game because of Bnetd. Today, I have destroyed it because of Blizzard. I am not only going to never buy anything from any company doing any business with Blizzard but I am actually looking for materials which can compromise Blizzard executives to post them on a dedicated anti-Blizzard website. Now please tell me, whose actions was harmful for Blizzard again?

--
Sincerely,
Pan Tarhei Hosé, PhD.
"Homo sum et cogito ergo odi profanum vulgus et libido."

They (sort of) do this by NGShake · 2004-10-02 13:28 · Score: 1

Small point, but incidentally Blizzard do this: if your CD/manual/cd-key is lost or destroyed, you can pay an arbitrary fee (presumably supposed to cover shipping and handling costs, but I daresay they make a tidy profit too) and they will replace it, provided you send something as proof of purchase. There are details about it on blizzard's website.

Actually... by abb3w · 2004-10-02 13:59 · Score: 3, Insightful

Aside from "Copy the game. Copy the CD-Key. Scratch the cds a little" and "Post Cd-keys somewhere on the net" (which is stupid-- you're sending the key to Blizzard, and giving them your address for your rebate check), the plan seems the seed of a potentially effective form of protest.

* 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.

Great explanation by Pan+T.+Hose · 2004-10-02 14:02 · Score: 1

"You're not buying the game. You're buying a license to use the game on this computer. So you don't own it, and you cannot do anything you want with it. You *do* own the disk that it's on, but you don't own that data. See what I mean?" I understood at the time only somewhat, but my dad was good to explain, because I still remember that.

Great explanation. Did he also show you Don't Copy That Floppy video, while he was at it? If you had said "that's a lot of money just to own a book" would he have replied: "You're not buying the book. You're buying a license to read the book. So you don't own it, and you cannot do anything you want with it. You do own the paper that it's on, but you don't own that words. See what I mean?" Because that is exactly the same. Books, music, software--it is all the same copyright law, meant to temporarily regulate the right to publish the creative expression (print books, press CDs), not use it (read books, play games, listen to music) and I personally find books the only media that people can be remotely reasonable about. Do you really think you need to obtain the right to read a book, because otherwise reading it is illegal?

--
Sincerely,
Pan Tarhei Hosé, PhD.
"Homo sum et cogito ergo odi profanum vulgus et libido."

Re:Ummm... by russotto · 2004-10-02 14:08 · Score: 1

Actually, this court ruled that bnetd does NOT have a substantial non-infringing use. The court declared, following Universal v. Corley, that providing access to a feature (battle.net mode) of software which is protected by a technological protection measure is a violaton of the DMCA even if the user owns the software in question.

The court also asserted that the fact that bnetd defeated a TPM to provide access to battle.net mode was undisputed, which I think is not the case; should be one of many grounds for appeal.

Minor Contract by Anonymous Coward · 2004-10-02 14:12 · Score: 1, Insightful

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.

Minors? by st0rmshad0w · 2004-10-02 14:33 · Score: 1

So how exactly would this apply to minors? What if the buyer is under the legal age to enter into such an agreement or contract?

There are times when the market isn't correct. by jbn-o · 2004-10-02 14:34 · Score: 2, Interesting

Do you really think that if one of them had a bread EULA that people would still by bread from them?

If EULAs on bread became common in the industry, yes, I do. And it will start somewhere, perhaps only with one bread maker. Then other corporate bread makers, seeing how they can insulate themselves from liability further, will emulate this example.

Late in the movie "The Corporation", a philosopher describes an interesting change regarding firefighting which I'll attempt to summarize here. There was a time when firefighting was privatized. Fire trucks would drive right past a burning house if that house didn't bear the insignia of that firefighting organization because firefighting was a contracted deal; the insignia on the side of the building indicated this deal. Over time we came to realize that everyone needs firefighting and therefore we should municipalize this service. The point being that running things according to market politics was not the most advantageous strategy and alleged market efficiencies weren't as important as keeping people safe from fires. Perhaps there are other things which obey the same general principles--we should be willing to exchange alleged efficiencies for a more uniform delivery of goods and services.

If you don't agree with the EULA or you don't like the fact some companies don't put their EULAs on the outside of their packages then exercize your power and don't buy their product.

EULAs haven't commonly been available on the outside of packaged software for a long time (if ever) and I doubt that EULAs will become commonly publicly available without government intervention. But, more importantly, this is tantamount to arguing that we should 'vote with our dollars' (as the phrase goes), an incredibly undemocratic way in which to operate. This system means that rich people can afford more votes than poor people; whatever system is controlled in such a fashion will inevitably lead to favoring the desires of those with money instead of being fair to all those who need the covered good or service. Rights should not be doled out according to who can afford them; poor people should not have to live according to the unforgiving tyranny of the marketplace set up for them by rich people.

--
Digital Citizen

My take on it. by Talonius · 2004-10-02 14:58 · Score: 3, Insightful

(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.

Depends whether EULA really means only "end-user" by NGShake · 2004-10-02 15:15 · Score: 1

Disclaimers (necessary I'm afraid): Firstly IANAL, only a student; secondly I've never studied IP law and my general contract law is a tad rusty; thirdly I'm English, so can only comment on English law (although I imagine US law will be pretty similar in this). Thus if any/all of this is wrong, apologies and please correct me.

Two things; I'll start with the minor one.

What happens, I wonder, in the case of pre-packaged software (e.g. MS Windows, etc) on a new computer (or perhaps better, a second-hand computer)? You're not always (or ever?) required to sign (/click) anything agreeing to the EULA, so can you be bound to it? My second point might actually answer that one for me, but I'm too tired to care.

I am not a fan of being able to sign/give away legal rights, and I agree completely with those who have said that EULAs should not exist at all - the whole thing should be governed by (a perhaps slightly modified form of) copyright law, which is IMHO more than protective enough for owners of intellectual property, without anything extra needed.

However, I think that when a case comes along (as it must eventually) where a software company is seeking to end the debate and establish beyond doubt that EULAs are binding, they will not have much trouble doing so (or at least software companies will have little problem changing their practices so as to ensure that the EULA *is* binding). I don't know how the 'sale' of software by the software company to the retail stores works, but I imagine it's a licence rather than a sale, just like the position between the software company and the end-user.

If this is true (and I suppose it must be, as all EULAs state that ownership remains firmly with the software company), then the retail stores 'selling' software have only a licence to it themselves. The maxim 'nemo dat quod non habet' is the unnecessarily pretentious legal way of saying the blindingly obvious: no one can give (or sell) what they don't have. If the retail stores don't have legal title to the software they sell, then they can't *pass* legal title to the end-user. Thus the end-user must have only a licence, and cannot legally gain anything more.

Now all that software companies like Blizzard have to do (and it may be that they do this already, but that isn't my area), is to make the licence under which they sell the software to the retailers subject to the EULA. Thus if the retailers only have a licence to the software which is governed by the EULA, then this is all they can pass on, and it doesn't matter whether the end-user has the opportunity to read the EULA or not - if a licence subject to the EULA is all the retailers have, then this is all that end-users can acquire.

This of course raises questions about the vailidity of all contracts to purchase software licences, because in practice end-users very rarely get the opportunity to read the EULA, and obviously a contract which holds one of the parties to terms which they did not have the opportunity to read is highly suspect and likely to be struck down completely. - But that's another issue.

So my point, after all that rambling, is simple: even if software companies should be told by the courts that EULAs are *not* binding (or that restrictions will be put in place as to what provisions they can contain), it would be only a few minutes' work for them to change their contracts with retailers so that they would regain validity in a way that no one could challenge - and obviously if it came to it this is exactly what they would do. Hence wrangling over the legal validity of EULAs under present law is kind of pointless, because no matter what the courts decide, software companies will be able to keep on doing whatever they like anyway, with a minimum of fuss.

So it all goes back to choice: if you are prepared to accept all of the terms of the EULA, then buy the software. If you're not...don't.

Re:Plain Engrish? by DavidTC · 2004-10-02 15:24 · Score: 1

Ah. Well, nevermind.

--
If corporations are people, aren't stockholders guilty of slavery?

Re:Plain Engrish? by ajrs · 2004-10-02 15:27 · Score: 1

Open the box. Copy the game. Copy the CD-Key. Scratch the cds a little.
Return all the package to Blizzard, arguing you don't agree with the EULA.

no, no, no.

Buy, open, return. No need to scratch, post keys, or otherwise screw the next guy.

The same trick works for copy protected 'CDs'.

First sale rights. by sonamchauhan · 2004-10-02 16:34 · Score: 1

> First Sale rights (!) can be waived in a EULA;

That's not good.

Here are two clickthrough EULAs I know of that restrict first sale rights. These are restrictions apply even if you resold it as a single unit: all CDs, documentation, license paperwork... everything got when you first bought the goods.

-- MS Visual C++.NET Professional
-- MS Visual C++.NET Professional
Can sell once. The person who buys must agree never to resell it again.

-- DOOM 3
Can never sell to anyone.

Blizzard wasn't so bad until they were bought by Anonymous Coward · 2004-10-02 16:49 · Score: 1, Informative

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.

Dont stop supporting blizzard... by kasek · 2004-10-02 17:13 · Score: 1

I will still support blizzard. They make quality games, that provide plenty of entertainment for my buck. I never saw any need for bnetd, because battle.net meets my needs just fine.

Not only that, but probably 95% of the people behind the games at blizzard have absolutely nothing to do with this case. Even if they didn't care about the bnetd software, their parent company, VU Games, would have put their legal team on the case.

Of course, most of these replies have very little to do with the bnetd server/software, and more on the aspects of reverse engineering, dmca, and eula agreements. Crucify blizzard all you want, this case was going to come eventually, wether from blizzard or from some other gaming company.

anyways, im gonna go play some more of the world of warcraft beta, and stare at the preorder box sitting on my desk. It is hands down the best mmorpg i've played (and i've played most of them).

Re:Plain Engrish? by cybrangl · 2004-10-02 17:17 · Score: 1

Software licensing came about in the early days because the issue of code being copyrightable was still up in the air. Now that code is copyrightable, I have always wondered how they can get their cake and eat it too. Either it is copyrightable, thus required to follow the fair use, or it is licensable and cannot be copyrighted. If the company wants to use a license to restrict the sale, then the DMCA should not apply.

0x0d0a please contact me by Nooface · 2004-10-02 17:22 · Score: 1

I would like to repost one of your past comments on my blog, but not without your approval.

If you are interested, please send me a note (nooface@nooface.net).

Everyone else, sorry about the offtopic spam, but I don't know any other way to contact him!

--

Nooface
In Search of the Post-PC Interface

Re:0x0d0a please contact me by 0x0d0a · 2004-10-02 21:06 · Score: 1

Nooface -- I tend to keep my "Slashdot persona" separate from my "real world persona". Someone dedicated enough to reading through my old comments could probably pick up my identity without too much trouble, but it's enough effort to warrant that most people do not do so, and I'd prefer that people not do so. Doing so gives me greater ability to speak freely.

Setting up an anonymous dropbox and posting a GPG key on Slashdot is certainly possible, but it's easier to handle this (reposting of comments) in a general manner rather than a case-by-case basis. I've added a journal entry addressing reprinting.

--
May we never see th

Re:Plain Engrish? by Sj0 · 2004-10-02 17:33 · Score: 1

Wha-- Why wouldn't you like MMORPGS? I mean, there's all the joy of levelling up for hours on end with all the inanity of your average AOL chatroom! What's not to love?

--
It's been a long time.

gaming the courts by notcreative · 2004-10-02 17:33 · Score: 1

only if the software you write violates the EULA of the court game.

Personally... by petrus4 · 2004-10-02 17:47 · Score: 1

This is a rare case in which I don't necessarily think the company in question are in the wrong. I really haven't liked what I've seen of the bnetd's developers' attitudes when I've been to the site...They seem to think that a company should have NO say in what happens to their material at all, which I think is wrong.
Don't misinterpret me here...I think Jack Rosen has horns, a tail, and glowing red eyes just as much as the next Slashdotter...but I also think music and software are a slightly different ballgame.

The thing about music is, there generally isn't a possibility of derivative works, or of the original work being modified quite so much. (I know about satire and remixes/covers, yes, but those are an exception) Once a song's been written, for most genres that's customarily the form it stays in. I don't have a problem with the copying of a static medium when there is no loss of definite revenue. (as opposed to *potential* revenue, which is what the RIAA are up in arms about)
Software on the other hand very often goes through an evolutionary process, and I believe personally that the creator of a given software project is entitled to govern the direction of its development. I'm not talking about copying here, either...copying binaries doesn't change the nature of the software at all in most instances.

Obviously open source is more desirable, and people should be encouraged to use open source licenses with their projects. But note here the difference between *encourage* and *force.* With the amount of cheating that's occurred on Battlenet already, Blizzard most likely feel that they have very legitimate reasons for not wanting people to back engineer the server software. I also know that the answer a lot of open source advocates are going to give to that is that more people looking at the code will make it more secure. That may be so...but you're still missing the fundamental point here. An author should have the right to determine how to license their own software. If they *choose* to put it under the GPL themselves, great, and it is true that that would most likely benefit them as much as everyone else. But if they don't, that *also* should be their perogative. If we were to start trying to force everyone who writes code to adopt an OSS license, we'd be no better in my mind than Microsoft and other such companies when they try to dominate people. This is the one area in which my own opinion fundamentally differs from that of RMS...in that I believe that freedom must also include freedom of choice.

Re:Plain Engrish? by fucksl4shd0t · 2004-10-02 18:36 · Score: 1

Make a MMORPG with a spell-checker and I'm there.

--
Like what I said? You might like my music

guaranteed profit by Rainer · 2004-10-02 19:17 · Score: 1

Sounds like retailers have guaranteed profit by now.

Just buy from yourself, reject the EULA and send the title to the producer for a refund.

The absence of the third button by IBitOBear · 2004-10-02 19:19 · Score: 1

The EULA, lacking a "allow me to use my first-sale rights" button cannot wave first sale rights, as there is no way to not wave them.

This is crap.

In my mind, I have never agreed to a EULA no matter what the buttons I press say.

There is the "install" buttion, and there is the "quit wihtout installing" button.

Period.

When they start having "I don't agree, now install what I bought" buttions then EULAs will be enforcable.

Not till then.

--
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press

An the EULA is from a third party by IBitOBear · 2004-10-02 19:36 · Score: 1

Also, as a matter of fact, the EULA is inflicted by a third party. I bought the software from BestBuy or CompUSA. Who is this Blizzard person? The manufacturer? I didn't buy this from them.

First Sale was exhausted before I ever even saw the box.

BestBuy probably bought it from a distributor...

--
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press

Re:EULA contract? (not with this drink in my hand) by IBitOBear · 2004-10-02 19:42 · Score: 1

Heck, just cover the screen region with a post-it note. In trught that would have the same meaning.

How about getting really drunk before you do an install. I don't think you can make a binding contract when you are legally intoxicated.

How about runing a program that automatically finds buttons and links and check-boxes on your screen that say "agree" and activates them at random.

Or closing your eyes and clicking about the screen randomly for a while?

How about proving it was me who clicked the button in the first place?

This is a bad finding of fact, and a certain jurist needs to have his bench examined.

--
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press

This is a death knell for online mod players.. by taosk8r · 2004-10-02 19:54 · Score: 1

(Not that there is more than one server that allows this, thanks to Blizz and the policies of the (IMHO) somewhat spineless community that is responsible for most mod creation (as they don't allow any discussion of BnetD or similar tools)).

I really hope someone puts a bug in the EFFs ear about this (to use as an argument in the appeal). I am part of a seriously endangered minority. I play mods for D2. As anyone who has spent any time actually playing this game, it quickly becomes extremely evident that it isn't really designed to be played all the way through (Nightmare and Hell) solo. Sure I can find a chat room that has maybe 10 or so other potential people to play a mod with (Over TCP/IP) (although most of the people there are modders themselves, and besides playtesting, they are usually (and should be) busy actually MAKING thier mod(s)). BNETD (nee PVPGN since BNETD is woefully outdated at this point) is the only real chance I would have to find a suitable group of players (with a good variety of character builds compatable with my own) to play with. Really Really unfortunate. If only Bioware were making Diablo 3! I wish that somehow Blizz could be made to realize how much the 'window' during which thier software is a viable purchase is extended by modders, and that they would change thier position and actually start supporting people that devote so much of thier spare time creating stuff that provides more play time (and may very well give Blizz great ideas for use in the sequels) and playing thier games years after most people got totally bored with them..

Lastly for anyone that happens to own an old copy of D2:LOD that they haven't used for years, you really should check this site out.

http://phrozenkeep.it-point.com/

Really really soon now I plan to write a basic guide for new mod players to give them the lay of the land (which - since I'm on dialup and loath forums took me quite a while to get (although it got a lot easier once I started using an IE overlay that supports mouse gestures and tabbed browsing)).

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-taosk8r

IMHO, both sides are being bad by Krylloan · 2004-10-02 19:54 · Score: 1

IMHO, BNetD is the single most threatening thing to blizzard's income from their current titles and any future titles that might be targettable by BNetD. Two reasons for this: 1: If major BNetD servers are fast enough and public enough, people that don't want to pay will play on BNetD servers, if they are legally able to run, instead of buying. 2: The Battle.net player base will fragment if players decide they can do better on BNetD servers, or play with non-BNet friends. BNet may lose critical mass. Then BNet will become less of an incentive to buy the game. I have no idea what morally ok purpose BNetD can serve as all the LANs I have been at have had 0 problems running WC3 or Diablo over TCP/IP, and anyone that wants to play over the net and doesn't want to connect to BNet because they can't spare the bandwidth or some other spurious reason, may use a VPN or many other means if they have problems. I'm not saying that what Blizzard did is good, I'm saying that the BNetD team's motivation is worse.

What "I agree" button? by Kwil · 2004-10-02 20:46 · Score: 1

Never showed up on my screen, no sir.

Just a blank box with a couple of blank buttons. I clicked one and the software installed. Did I mention I had some flaky memory I had to replace a while ago?

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That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze

Re: Small Claims Court for postage refund by some+guy+I+know · 2004-10-02 20:47 · Score: 1

grounds for a case in small claims court

You can't make a case in Small Claims Court for anything less than $20.
So, unless you send the package via Federal Express Overnight or something else that is >= $20, you can't do much except maybe report them to the BBB, or perhaps register www.blizzardsucks.org and document your case there.

--
Those who sacrifice security to condemn liberty deserve to repeat history or something. - Benjamin Santayana

Not True (TCP/IP) by taosk8r · 2004-10-02 21:00 · Score: 1

The game can be played over the internet w/o using Bnet. It has a quite easy built in way in game to setup a TCP/IP server (and client). The problem is actually finding players that arent total griefers w/o something like bnet (and without paying Gamespy).

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-taosk8r

My way around by HyperCash · 2004-10-02 21:36 · Score: 1

is this. When I have to sign something, say, a phone contract or a Dr.'s office waiver I always read it. If there is something there I don't agree with I cross it out. People usualy only check to see if its signed, they don't really notice if you've changed something especialy if its not on the first page. This is legal. Now just get a marker and cross out the terms on the monitor. Click agree. There you go.

I can understand that you can waive your rights to fair use, first sale, backups, reverse engineering, etc in a contract. What I don't understand is how any court of law could uphold an EULA to be a valid contract.

--HC

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So I'm jump'n up and down screaming show me the money.

Re:EULA contract? (not with this drink in my hand) by geminidomino · 2004-10-02 22:17 · Score: 1

Even easier than all of that.

Get a minor to install the software, preferably one under 13 (use all those idiotic "Think of the Children!" laws to your advantage)

Re:Same legal principles in GPL and open licenses by 91degrees · 2004-10-02 22:29 · Score: 1

Really, I think it all boils down to fairness. People expect to have the unconditional right to install and use purchased software in whatever manner they see fit. The GPL and other free sofgtware licenses grant that right. So did a lot of licenses in the old days. Typically they would grant the right to isntall on a machine, make backups, and run it. Ijn fact, they usually existed to clarify matters that were not totally clear under normal copyright (e.g. many pieces of software had a clause allowing it to be installed on multiple computers as long as it was only used on one at a time). People tend not to object to this.

What is unfair is removing expected rights. The right to publish reviews, resell, and so on. And there's not much of a choice on whether you agree. The publishers have a monopoly on their software.

Re:Plain Engrish? by KDR_11k · 2004-10-02 23:54 · Score: 1

(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.)

Bullshit. The only solution is to neither buy nor play the game. A boycott means "see, guys, we can live without your commodities and we're willing to do so if you don't bow to our demands". Warezing the games means "I'm too weak to withstand the temptation but I didn't want to give you money you evil people! Luckily I can get my fix without paying!". You know what solution the latter implies? Exactly, harsher actions against piracy and stronger rights infringements. They'd assume they would get you back by cutting your rights even further. If you don't buy and don't play their only option is to bow your demand if they want you back. Boycott in small numbers doesn't work, obviously, since they assume doing what they want is more important than those few customers, but once you gather a nice percentage of their potential buyers they're going to realize the threat.

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Justice is the sheep getting arrested while an impartial judge declares the vote void.

Re:Plain Engrish? by Frodrick · 2004-10-03 00:38 · Score: 1

An extension of this could mean that any documents you create under a future version of MS Office could potentially be copyrighted by MS.

That is NOT as far-fetched as one might think. Some recent versions of Microsoft FrontPage (and possibly Publisher) already contain a clause that the user will not use the software to create material critical of Microsoft. I have seen it.

It is only a small step to claiming complete control.

Re:Plain Engrish? by Arcturax · 2004-10-03 02:22 · Score: 1

OT, but dude, use metamoderate (log in first!)

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--Won't that be grand? Computers and the programs will start thinking and the people will stop. - Dr. Walter Gibbs

Re: Small Claims Court for postage refund by abb3w · 2004-10-03 02:23 · Score: 1

You can't make a case in Small Claims Court for anything less than $20.

Minimum claim varies from state to state, and in some venues may be as low as one cent (as apparently the City of Philadelphia allows). Last I checked my home state, it was $5. If you're too cheap to ask a lawyer (and IANAL), you can usually find out what the limits are from the court clerk before you file. Pain and suffering damages have been barred from small claims court in each state where I've lived, and I think probably are everywhere, so you can't use that to pad your claim.

However, judges tend to be unamused by people wasting their time, so for a de minimus claim, you may be at higher risk of being laughed out of court, not to mention putting yourself in danger of a countersuit for legal and travel expenses on a frivolous suit if you loose... which in turn might not be small claims. Not to mention the certainty of filing costs, which you only may recoup if you win... and if you remembered to include "plus filing costs" in your claim.

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//Information does not want to be free; it wants to breed.

Re:Plain Engrish? by yodhe · 2004-10-03 04:03 · Score: 1

Now IANAL but a more appropriate and effective response would be to countersue the place of purchase. If I purchase software from them then a contract has been negotiated, namely exchange of $$ for the cd. When I then get home and attempt to install the software on my system, I discover that there are additional terms to the contract in the EULA. Shouldn't the place of purchase then be guilty of trying to modify the contract after the fact, or failing to make explicit the terms before sale? This also has the beneficial side effect of directly affecting the publisher where it hurts, by discouraging shops from stocking software that may get them sued.

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Life is a continual education in the triumph of application over ability.

Five steps to the perfect boycott post by mattgreen · 2004-10-03 05:01 · Score: 1

1. Begin with blanket statement about EULAs being inherently evil. Follow-up with supporting statement involving the Constitutional rights being infringed. No need to use court cases or any other sort of documentation for claims -- that would detract from the overall argument.

2. (Optional, but effective) Utilize slippery slope fallacy to conjecture about how this country is turning into [1984|Communism|run by corporations]. Throw in pro-GPL comments for good measure. Additionally, also consider making ridiculous claims such as, "if you buy this software you are just selling yourself out." Dogma makes for very effective arguments!

3. Include personal anecdote about how *you* always disliked Blizzard and never bought their products to begin with. To know that someone who disliked Blizzard beforehand is voicing their distaste of them now after this decision makes the argument THAT much better!

4. Create online petition. Include poorly formed arguments (e.g. copy-paste steps 1-3) and post link on Internet.

5. One month later, forget about the whole thing and buy World of Warcraft. On the next post involving Blizzard at Slashdot, repeat the above process.

Re:Plain Engrish? by OrcishSpacesuit · 2004-10-03 05:08 · Score: 1

It's not a license! It's some bizarre twisted document that tries to be a license and a contract at the same time.

It's an End Use License Agreement. It's basically, "You Agree to this contract, and we give you a License."

Re:Ummm... by mdfst13 · 2004-10-03 07:03 · Score: 1

The especially ironic part of this is that Blizzard uses a bittorrent like system to distribute videos.

Free Use by E-Tigger · 2004-10-03 07:04 · Score: 1

OK, what we need is Jon Johansen to write something that bypasses the EULA.

We bought the software we should have free use on it. Bypass the EULA, we didn't see it, we didn't agree to it, go from there.

Re: Small Claims Court for postage refund by some+guy+I+know · 2004-10-03 14:15 · Score: 1

Minimum claim varies from state to state

I was basing my statement on the U.S. Constitution, which states that a person can bring suit for any amount >= $20.
I was unaware that various states and localities had reduced this amount.
Thanks for the info.

--
Those who sacrifice security to condemn liberty deserve to repeat history or something. - Benjamin Santayana

Re:Plain Engrish? by karmatic · 2004-10-03 17:36 · Score: 1

Except, since you purchased the software, you don't need the license anyway.

For one thing, the original thoery was because you made copies running software, you needed a license to copy. Copyright law now specifically allows you to make the copies needed to use a particular program.

Re: Small Claims Court for postage refund by abb3w · 2004-10-04 00:58 · Score: 1

I was basing my statement on the U.S. Constitution, which states that a person can bring suit for any amount >= $20.

That's amendment seven, which specifes that as the minimum size controversy you may demand the issue at law be decided by a jury. For under $20, you can't insist on a jury trial. (For a jury trial, you may not be eligible to use small claims, but don't hold me to that.) It's a bit more complicated than that, but the difference between the court of law and court of equity isn't really essential here, and is probably only of interest to law wonks, whether admitted to the bar or not. =)

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//Information does not want to be free; it wants to breed.

SDL by ajs · 2004-10-04 07:46 · Score: 1

Yep, this is one of the things I love about OSS. Somebody has a great idea, starts a company, writes some great code, and then fails to make the business side work.... before this would have meant wasted effort and code that was never seen again, but in this case the code stays and many others can benefit from it for years to come.

This kind of true code re-use (not the hollow buzzword of proprietary development) is why OSS is powerful.

Re:Plain Engrish? by Audacious · 2004-10-04 11:35 · Score: 1

Thank you! :-) I knew I had misspelled it but could not decide how I had misspelled it. :-)

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Someone put a black hole in my pocket and now I'm broke. :-)

Re:Plain Engrish? by stanmann · 2004-10-05 02:14 · Score: 1

don't do this at gamestop/ebgames/etc mall boutique stores, they will re-shrink and sell as "new".

--
Food not Bombs is a nice platitude but it breaks down when you notice that the Bombees are usually well fed

Re:Blizzard Evil? Probably not. by Sipos · 2004-10-06 00:35 · Score: 1

Surely if there servers are so great no one will use independant ones that are set up using bnetd and there will be no problem.

Not all rights are inalienable! by Xenographic · 2004-10-10 04:19 · Score: 1

If what you say is true, it would be unenforceable to sign a non-disclosure agreement, as you are giving up your first ammendment rights to free speech.

Not all rights are inalienable. And even in your circumstance, you may have a duty to disclose certain things (e.g. in order to save someone's life, and you cannot contract with someone not to disclose a felony--think of the implications of that for crime families--and I'm sure there are other examples, too). Mind you, such things are riddled with loopholes and other things that rest upon very specific facts unique to each case. Get a real lawyer's oppinion instead of mine, because the above is not intended as legal advice.

As for the military, you're allowed to give up more of your rights to them than to other parties. They even have their own justice system, separate from that for civilians. Perhaps you've heard of the UCMJ? If not, Google it.

Anyhow, slavery is one I'm rather sure is inalienable, and we do NOT have an "unlimited" right to contract! While some seem to believe in that position, it is neither the position of the law (judges are empowered to void particularly odious contracts--but you should NEVER rely on such a hope in signing one, they are reluctant to do so), nor is it a wise position. I shudder even to think what lopsided contracts might be foisted upon us were it so. And certain states, most notably California, will in fact invoke the fact that slavery is outlawed by the constitution to void certain portions of non-compete clauses in contracts which would otherwise prevent you from working in your field.

Now, once again, please get an actual legal oppinion from a lawyer admitted to the bar in your state, rather than relying on any statement I, a non-lawyer, have made. The particular facts of a given situation may make all the difference, and I am only speaking in broad generalities about a complex subject.

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