Blizzard Stomps Bnetd in DMCA Case

base3 writes "The EFF reported that the Vivendi/Blizzard vs. the good guys case has been decided, and it doesn't look good. Some highlights from the ruling are: A clickthrough EULA isn't unconscionable (and thus enforceable); Fair Use rights can be waived in a EULA; First Sale rights (!) can be waived in a EULA; The DMCA's interoperability provisions are not a defense. If this ruling is allowed to stand, it will allow one-sided EULAs to force the waiver of the rights of First Sale and Fair Use. This, combined with the Supreme Court's recent assent to perpetual copyright, a few decades at a time, will destroy any semblance of balance in U.S. copyright law. Fortunately, the EFF plans to appeal the ruling."

Comments

sold down the river

[jacquesm]

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.

Re:sold down the river

[Anonymous Coward]

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

[Elektroschock]

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

[Anonymous Coward]

If you want it to get better, you have to do something about it, not just sit on your ass and say "it will probably get even worse!"

How monumentally naive. Thousands of people have stood up to do something about the ridiculous drug laws in this country. NORML has been working for 30 years to repeal the marijuana laws. They have had no success at the federal level. Imagine spending half of your life to overturn ONE stupid law, and meeting with failure. Face it. The system is unresponsive to the needs or desires or will of the people.

Re:sold down the river

[f8free]

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

[Sj0]

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.

Well, we wanted a ruling on EULA's

[nurb432]

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

Joy Joy.

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

Re:Well, we wanted a ruling on EULA's

[bnenning]

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".

Re:Well, we wanted a ruling on EULA's

[OverlordQ]

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?

Re:Well, we wanted a ruling on EULA's

[Curunir_wolf]

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.

Re:Well, we wanted a ruling on EULA's

[gcaseye6677]

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

[Anonymous Coward]

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

[nightfire-unique]

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.

Re:Well, we wanted a ruling on EULA's

[gl4ss]

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

only in nations allowing slavery.

Re:Well, we wanted a ruling on EULA's

[Anonymous Coward]

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

[Have Blue]

Isn't gaming the courts like this illegal?

Re:Well, we wanted a ruling on EULA's

[Xenographic]

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:Plain Engrish?

[Anonymous Coward]

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

Right of First Sale in 2001

[gregfortune]

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

[rpdillon]

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

[Alsee]

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.

-

Re:Right of First Sale in 2001

[3.1415926535]

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.

This is wonderful news!

[NDPTAL85]

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!

This is bad.

[Breakfast Pants]

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

Re:This is bad.

[Breakfast Pants]

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.

Re:This is bad.

[AeroIllini]

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.

Re:This is bad.

[Yolegoman]

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.

[Anonymous Coward]

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...

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

[Anonymous Coward]

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

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

[Siniset]

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...

[ScrewMaster]

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.

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

[7-Vodka]

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.

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

[Cynikal]

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...

[paynter]

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.

Yes...

[AtOMiCNebula]

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.

Thanks for letting us know!!..

[arhar]

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.

Seems to me to be a bit... *duh*

[Anonymous Coward]

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*

[TCaM]

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

Re:Seems to me to be a bit... *duh*

[runderwo]

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.

Re:Seems to me to be a bit... *duh*

[stubear]

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*

[Sloppy]

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.

Re:Seems to me to be a bit... *duh*

[ShawnDoc]

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:Plain Engrish?

[brianosaurus]

It roughly translates to "Boycott Blizzard."

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

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

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

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

Okay - call me a Linux zealot, but...

[bushda]

...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

ouch.

[focitrixilous P]

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.

Re:ouch.

[xigxag]

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.

Isn't it time

[rpg25]

...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:Ummm...

[Anonymous Coward]

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:Er...whoops.

[brianosaurus]

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...

In a bid to control piracy..

[xot]

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.

Re:Plain Engrish?

[Zangief]

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.

[JeanPaulBob]

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.

[mitherial]

*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).

Re:No, EULA's don't come with software.

[Anonymous Coward]

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.

[ChaosDiscord]

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.

bnetd's case

[rpdillon]

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

[rpdillon]

Sarcasm. Most /.'ers would know that a program ending in a "d" would be a daemon. inted, xinetd, httpd, dhcpcd, etc.

Someone please explain to me...

[Hamster Lover]

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...

[Romothecus]

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.

Time to Burn Some Karma But

[Brian_Ellenberger]

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

[sqlrob]

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

[cynical kane]

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:Plain Engrish?

[ajs]

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.

Nope

[rsilvergun]

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.

Re:Ummm...

[quantum bit]

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.

Cue Hip-Hop Beat... 1.. 2... yo, yo...

[Anonymous Coward]

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!

It's not good guys vs bad guys...

[argent]

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".

EULAs

[Sloppy]

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:

1. Oops, the defendants didn't keep the receipt. They probably shoplifted.
2. 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.

Re:EULAs

[rpdillon]

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

[myowntrueself]

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...

Re:EULAs

[Tim C]

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.

Re:EULA is a contract

[rollingcalf]

"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?

So, what's the problem?

[Pig Hogger]

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".

This is Just a District Court

[Royster]

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.

If they won't give you a refund...

[rollingcalf]

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.

Re:EULA is a contract

[Anonymous Coward]

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

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

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

Re:Plain Engrish?

[arkanes]

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?

[CantGetAUserName]

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.

This is insane

[HangingChad]

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.

Re:EULA is a contract

[Zak3056]

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.

I read it and it makes me sick! EULA = Contract

[Proudrooster]

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!

Backups probably *AREN'T* fair use!

[isaac]

...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:

1. 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.
   
2. 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,
   
3. 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.
   
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.

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

Re:Plain Engrish?

[0x0d0a]

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.

Re:Plain Engrish?

[EvilSporkMan]

That's not a boycott. That's screwing Blizzard in the ass and some probably illegal (copyright violation / fraud (?)) shenanigans.

Real boycott howto:

1. Don't buy Blizzard products.
2. Make sure all your friends follow steps 1 adn 2.
3. ???
4. Consumer power grab!

No the big problem is...

[NigelJohnstone]

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

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

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

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

What I think you should do is this:

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

Send the letter off to them, THEN INSTALL IT.

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

Re:No the big problem is...

[Fnkmaster]

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...

[AaronGTurner]

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.

District Court -- Not That Big of a Deal

[ortcutt]

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.

Re:EULA is a contract

[arkanes]

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:Plain Engrish?

[tekunokurato]

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...

Re:OT, sorry

[glpierce]

"How about shays (chaise) lounge?"

It's "chaise longue," not "chaise lounge." "Longue" means "long," "chaise" means "chair."

Pretty devastating ruling

[Fnkmaster]

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.

GPL != EULA

[StupidKatz]

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

[StupidKatz]

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:EULA is a contract

[FLEB]

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

Re:Plain Engrish?

[Anonymous Coward]

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:Same legal principles in GPL and open licenses

[Weird O'Puns]

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...

[McBeer]

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)

Re:Easy fix

[KDR_11k]

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?

Yes they are

[Solandri]

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

[isaac]

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

Re:Plain Engrish?

[UfoZ]

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.)

Re:Er...whoops.

[damiam]

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.

Re:Plain Engrish?

[Anonymous Coward]

Cooooooool...

One less person to add to server load on the opening day of WoW. Your loss buddy.

But what people don't realize...

[Hybby]

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:Plain Engrish?

[karmatic]

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:EULA is a contract

[HeghmoH]

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.

Re:Publicizing EULA Online

[Anonymous Coward]

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.

We need to bypass the EULA

[Todd Knarr]

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

[optimus2861]

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.

Do what I do

[earthforce_1]

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.

Re:Do what I do

[jonabbey]

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?

Re:Do what I do

[NGShake]

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:EULA vs GPL

[Todd Knarr]

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).

so stop purchasing from Blizzard

[maxpublic]

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

Vote with your feet

[rmassa]

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.

Wrong!

[ebyrob]

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

[AHumbleOpinion]

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:Plain Engrish?

[kronchev]

Not everyone is simple enough to be amused by MMORPGs...we lose nothing. Have fun with your lack of a real life.

The crux of the problem with the DMCA...

[mark-t]

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.

Re:EULA vs GPL

[argent]

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.

Minors.

[NHSheep]

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?

Shoplift Apple software then

[gsfprez]

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.

40 dollar contract.

[nurb432]

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..

Re:40 dollar contract.

[Gentlewhisper]

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?

Actually...

[abb3w]

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.

There are times when the market isn't correct.

[jbn-o]

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.

My take on it.

[Talonius]

(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

Re:Er...whoops.

[Fancia]

iTunes allows non-iTunes purchased items to be played, as well. It plays MP3 and unprotected AAC, as well as a few other formats.

Re:It can be..

[Zorilla]

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!

Re:EULA is a contract

[arkanes]

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

[SurgeonGeneral]

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.

Re:EULA is a contract

[geminidomino]

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

[arkanes]

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.