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The Basics of EULAs
Garthilk writes "Blizzard recently made a bit of press when they announced that they would be actively enforcing their End User License agreement and prohibit the third party sale of game items and characters. Many people don't believe these clickthrough EULAs to be enforceable contracts. Thankfully Don Shelkey from the Corporate Finance and Technology section of the law firm Buchanan Ingersoll stops by to give us the low down. Mind you he is speaking on his own behalf and not on behalf any of his clients."
the number 1 rule with the EULA is screw the customer.
We all remember what happened with Diablo 1 and the many godly plate of whales ;-)
It will be interesting to see where this goes in the future. They say it's enforcable, but I am curious to see how enforceable it really is. It could have consequences for the entire MMORPG industry...
I store my recipes online (the way nature intended)
It really doesn't matter if click-through is binding or not. Most companies just play the "Right or wrong, we'll sue your ass into the ground and bankrupt you on court costs."
Who does an 800 pound gorilla sue? Anyone he wants.
As much as we hate them, EULAs are necessary. EULAs also include things like your distribution rights, and (I assume) that you can't hack.
;)
;)
'cos we all know how fucking annoying those hackers are
Doesn't matter...I've only come across one since I started playing CS:S...and I awped him...that reminds me: LENT, if you are out there, please report to your nearest execution center
On the box of a copy of pcAnywhere, there was a sticker that said, "For Educational Use Only." But, as I was installing the software, I read through the EULA. It didn't talk about "educational use" anywhere...
tasks(723) drafts(105) languages(484) examples(29106)
What I can't understand from this is WHY Blizzard would be opposed to this? If a mini-economy were to open up around your game, isn't that a good thing? They could get into the act themselves -- selling magic items and high level characters to the highest bidder? Hasn't anyone learned ANYTHING from the file swapping issues, Hacked satellite boxes or even drug interdiction? You can't stop people from doing what they want, and by picking battles of silly stuff like this weakens the arguments in legitimate cases where people actually are injured.
If there is a market for WoW stuff, then people will buy and sell it. p>Alot of times you'll here the legal phrase "Qui Bono" which literally means "Who benefits." It's used in the context of trying to establish who really ganis from certain actions. In litigation like this, I think the question that needs to be asked is "Qui Incolmunis" -- or, who is injured. In this case, where (as far as I can tell) no one is injured, there should be no litigation.
I have read the players complaining about the constant "buy now" things they see online. I don't think that legislation is the right way to solve a social problem. Why not make all artifacts have a permanent lifespan with the character who first posesses them, and only 24 hours after that? You could make items/characters untradable, but people don't want that. They just want them to be not tradable for money. Unfortunately, the way the world is, money is a universally accepted currency that can be used to acquire things of value. Driving the market underground is exactly the same as an ostrich sticking it's head undergound -- you can't see the problem anymore, but it will still be there.
Nothing great was ever achieved without enthusiasm
RTFA.
EULA's have been enforced.
The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.
The law of contracts is the law of promises. Long before computers were invented, people were making promises. At some point, the law had to designate which promises it would enforce and which promises it would let slide. The former are called "contracts." That is, a contract is simply a legally enforceable promise.
To have a contract, you have to meet certain elements. I refer to the terminology of my professor and renown expert, John E. Murray, Jr., author of Murray on Contracts, a first year law student's bible on the matter. To have a contract, you must have 1) an offer, 2) an acceptance and 3) a validation device, most often, consideration.
The offer and acceptance parts are quite simple the vast majority of the time. Usually one party says "I will provide you with X if you provide me with Y," which qualifies as an offer. The other party says "I agree" and the deal is done. Consideration is sometimes a little bit tricky, but in order for a contract to be valid, there must be a bargained for exchange. Lack of consideration is why gift promises, even in writing, are not enforced. I say "I agree to give you $100 because I love you." We put it in writing signed by 10 nuns, each of which testify that I fully intended to give you $100. That is not a contract because there was no bargained for exchange of value. Promises to make gifts are simply not a type of promise that the law chooses to enforce.
Ok, so lets look at the typical EULA to see if it's a contract. The gaming company makes you and offer to play the game. In exchange for playing the game, you must agree to pay a fee each month and follow the EULA. That is the offer. You accept the offer by clicking "I Agree" when you log in. You technically do not need to do it each time that you log in, but most companies do this simply to remind the consumer that it is bound by the agreement (and to provide notice of any modifications). The promise is supported by consideration, namely the company permits you access to the service, and you pay the fees.
Tada, contract! So, what is all the fuss about? Well, you see there is good reason for confusion.
When software companies first started, it was easy. They had a product that they made. They wanted to license it to someone else to use, so they drew up an agreement, and said "sign on the dotted line." Those were the early EULAs and they were no doubt enforceable. But then software companies wanted to make its product easy to buy, so they threw it in a shiny box and popped it on a shelf. They certainly couldn't ask the clerk behind the counter to execute contracts for them, so they simply tucked it inside the shrink wrap and included "acceptance language" stating "by opening this box, you agree to these terms."
Wow, now wait a minute here?!? There is something messed up with the timing of the whole thing. It doesn't jive with standard contract formation process. So, I pay the fee, get the thing that I paid for home, open the box, and accept the offer before I see it? Hmm. Well that didn't make much sense, and judges weren't really familiar with how this whole thing worked, so cases came down that said these types of agreements, shrink-wrap "EULAs," are not enforceable. They aren't enforceable because they do not meet the elements of a contract.
But wait again! Some smart guy decides "this is great" and he goes and buys a piece of software that contains something like a telephone directory of the entire United States. He rips the contents off the CD and makes his own CD that does the same thing, and competes with the original company. The original company says "we will see about that" and the ProCD case is born. In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions. Later cases came out, however that said EULAs are a special kind of c
Ceci n'est pas une signature.
The problem with EULAs is once you have purchased the product, say a game and opened the box (unreturnable at this point) you are exposed and forced, lest you forego the purchase price of your game/app/whatever lest you click on the little "I agree" box. It's a sort of blackmail. The vendor does not make the EULA available prior to purchase and "read it on the web" is not practical. Too much effort on behalf of the consumer, and conveniently not enough on behalf of the manufacturer/vendor.
While this is not the case all of the time, it is most often the case.
Does Right of First Sale have anything to do with this?
I just have my kid brother click "ok" or tear open the envelope. Since he's not 18, the contract isn't enforceable in most states. Of course, game makers could get around this by making us go through the EULA every time we play ("playing this game constitutes your agreement to the following"). Also, while IANAL, I understand that many states consider a contract signed while you are intoxicated to be unenforcable. So, have some beer with your EULA. Since there is a lack of legal precedents regarding whether EULAs are enforcable or not, I suspect that the software maker would look for a better target than risk loosing the first case on a technicality.
I would have thought this would have been obvious anyway...
You're presented a list of conditions for using the program.
You're given the opportunity to accept or decline before you can use the program.
Seems pretty clear-cut to me..
Side note: has anyone patented the 1-click EULA?
I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.
I think the real issue is whether shrinkwrapped EULAs are enforceable, not EULAs in general. If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal? But if I have to pay money, remove shrinkwrap, view license keys, insert CDs, then have the option of reading the EULA, but cannot return the opened software if I disagree, should that be legal?
I don't think it should be legal, but then again I am not a lawyer, judge, or Congressman.
24 beers in a case, 24 hours in a day. Coincidence? I think not!
Examples of typical EULA language (paraphrased):
"We can install anything we like on your computer"
"We don't guarantee the program will even run, much less do what we said it will do."
"We are not liable for anything, even if our software makes your company's profits implode"
"We can collect any data we want and sell it for a profit"
"We will charge you to fix any problem found in our software, assuming we choose to fix the problem."
Sound's reasonable to me...
The NSA: The only part of the US government that actually listens.
Many people don't believe these clickthrough EULAs to be enforceable contracts.
And in Germany they are 100 percent correct. After all, a contract requires a clear volition from all parties. And a click on a virtual button or opening the shrinkwrap is not sufficient for that, as you can't even tell who made the click (maybe my cat stepped over the keyboard while I was out of the room).
Does anyone else see Blizzard becoming super snobbish? They first cut off the delivery of their game so that no one else can get in. (They SAY this is for server reasons...) Then they say that you can re-sell characters because it said so in the EULA? I think the anti-newbie lobbyist has finally gotten to them.
You RTFA. Those were not EULAs in the strict sence that have been enforced, not alone. It give such an impression, just like SCO's lawsuits gave the impression that they were about patents and copyrights while they were in fact about contracts. Those are side issues.
If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal?
GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.
Standard disclaimer : IANAL
"Backups are for wimps. Real men upload their data to an FTP site and have everyone else mirror it." -- Linus Torvalds
Most disclarimers would say they attempt to be informative and accurate. The linked webpage's disclaimer claims to be for "viewing pleasure" so I might as well go watch ...
....the most impersonal form of communication ever to have been devised by mankind. It doesn't talk to you, it barks at you.
It's the Terms of Service you agree to online when you give them a credit card number and say 'Yes, I Agree' in order to play. Whatever questionable status EULA's may have, if this isn't enforceable then no online contract is.
Read it yourself.
If you don't agree to that, then you don't click through, don't create an account, and do something else. This is a valid, 2-party contract. Deal with it.
R: That voice. Where have I heard that voice before? B: In about 365 other episodes. But I don't know who it is either.
/.'ed
Google Cache Publication date 07-Oct-2004 - Slow news day?
I'm pretty sure a minor can not accept any contracts or anything like that with out a parent signing off on it. So just have someone under the age of 18 install WoW for you and then go about your businesss. You never accepted a EULA and the person who did is a minor.
this is the most important sig ever! In your face 446154!
So, if I get the FA right, author says that if tomorrow Blizzard changes one line in their EULA saying :
"by clicking I AGREE you accept to transfer your house/car/etc... properties to Blizzard"
If I click the button, because I'm eager to play, Mr Blizzard can come to my house and get my car, wife, kids, etc ?
I mean, honestly, who's willing to read the EULA EVERYTIME they launch a game, especially highly addictive games like MMORPGs. Then there's the problem of EULAs usually not 'readable' until you buy and install the game. I doubt a lot of shops accept refunds on online games, as they can't check if you used/wrote down the key. EULAs are IMHO plain stupid and oneway safety. As often, the user is on the wrong side of the stick.
There's no place like 127.0.0.1
MyBlog
WoW on, seems to be selling a decent amount above retail (~40%).
Does the UELA still apply if you download the game from Kaaza?
Can self changing EULAs or TOSs be inforced, most are dynamic and can change at any time. This is the biggie gray area. Under law here every change must be signed off on otherwise its not valid.
:D Kinda like a corporate gang bang against the customer, employee etc etc.
I guess like most things in the USA, you are anally reamed either way
Previous posters have asked why stop real money from coming into contact with the game? I think its because they want to have the game played as it should be, by everyone. This is what the TOS (or EULA) is for, to terminate service for anyone who ruins the game.
;D
It was the same way in D2. Im sure there are some moral issues with it, but none that I have heard to sway me.
I personally am working on some botting software, I cant stand playing that game for hours
(I hate FPS hackers, where the game is based on skill and not time played)
"how can they call it a MINE if everything here is THEIRS?!?!" -Straight Jacket
This is exactly the same as if you found a piece of paper in the trunk of your car after you had bought it. It's just a piece of paper until you sign it, and only then it can become a contract, if and only if the other side is notified about the fact that you have signed it. And in that sense, the original poster is right. It was never ruled that you can enter a binding contract in any other way, especially when you don't get anything in return. If I say that by answering to this post you agree to accept my contract, would it make it so? No, because if you don't agree with my contract, than you don't have to agree that by replying you accept it. It's like: by blinking your eyes in the next 30 seconds you agree that you will give me your money. This is just bullshit. And yes, IAAL.
I bought a copy of Word once (I'm sure I lose all sorts of geek points for that) at a major retailer in Japan. There was a sticker on the box that said 'not for sale outside the US and Canada.' Go figure. I had to laugh. The license was of course, shrink wrapped. I don't recall it saying anything about export, but that was a long time ago. May or may not have read the thing.
GPL'ed software has no EULA, and the GPL does not rely on contract law, rather it uses copyright law as it only covers distribution of the program, not how it is used.
The GPL is still a type of contract. Copyright itself is a type of contract -- the owner grants me permission to use the product if I agree to abide by the terms of the license. This license may be "pay me $20 for a CD and promise not to copy it" or it might be "take it for free, change it, and give it away."
24 beers in a case, 24 hours in a day. Coincidence? I think not!
We can kvetch all we want about EULAs, but the big question here revolves around ethics.
On the most basic level, I think we all perceive that just compensation for work is wholly reasonable.
Yes, I've used software that I didn't have legal right to, but I understood that it isn't really kosher.
The only person capable of stopping anyone from doing anything is the individual- to my mind, EULAs are general reminders that make you consider the nature of what you are doing in the first place.
befuddled (noun) 1. Unable to create a pithy sig
I will believe that EULAs are enforcable as soon as the first EULA is enforced, but not sooner.
While I realize it's a Slashdot tradition to not RTFA before posting about it, you really need to go RTFA. EULA have been enforced by court decisions, and apparently they go back a fair ways, there's plenty of legal precedent to enforce them now, under the right conditions.
In this case, talking about MMORPG EULAs, it's even more clear cut. You're shown the EULA every time you log in (even just the first time is enough) and have to agree to it before playing. That constitutes a legal contract even without the legal precedents already set. That's the gist of this guy's discussion.
So time to start believing they're enforceable, since they are.
If you're an online game implementor, you know that people will want to trade items. You know it, because you're not the first game out there, you're the fifteenth. You're the fiftieth. You can see that people want to trade items.
Sure, the arguments run in two major veins: it's not fair to the game for people to shortcut their character development, and it's not fair to the users, because sales fraud is rampant.
If you gripe about players trading items, you're pissing into the hurricane. Even if it's against all the rules, people will be trading items. And what's worse, people will be offering sales and not following through, so other people will scream about fraud. You're in a no-win situation: people who follow the "rules" are unhappy and people who try to get better game goods are unhappy.
Unhappy customers are not a good thing for any subscriber-oriented product. Unhappy customers who are highly connected, organized, and communicative are a major threat to a subscriber-oriented product.
So why make them unhappy unnecessarily?
Implement an escrow mechanism into the game service.
If a player wants to sell a +20 Sword of Wounding to another player (even on another server/shard/instance/cluster/whatever), let them. Have them put the item into a secure locker-style location in the game world. This takes the item out of the control of the player, to completely remove the ability to defraud. The item is listed up for sale, either to a specific customer, to a guild or alliance, or to anyone. Real cash will buy that item.
Now, where does the cash go? Most of it goes to the selling party. That's why they wanted to sell it in the first place. Whether the cash is presented as future service credits, or a company check, it doesn't matter. Games may differ on the finer points, but one thing is clear.
A cut of the escrow money goes to the game producer.
That's right: if you own the escrow, YOU earn money when YOUR players trade goods. You're the marketplace. It pays for all the effort you made to implement the secure lockers. It pays for the customer service aspect of managing the transactions. More transactions will go through without complaint, and you are in a position to ensure that.
You can't control eBay. You can't control the gentleman's handshake at the pub. You can control the secure locker mechanism that's hosted on your own servers. So earn some money from it.
What about that other line of reasoning, the thing about being fair to the players? What's more fair than instantiating a single set of rules, by which everyone has access? Many people don't trade because of the fraud, but they'll complain about how it's unfair that other people do trade. Others complain that if they don't trade, they can't be the best in the game. Well, it's not about being the best in the game, it's about being the best you can be.
When I was a big game player, the game I played had one simple warning to those who complain about fairness and balance and competition. There will ALWAYS be someone who is stronger, faster, better-equipped, higher-leveled, and prettier than you are. Get over it. It's a game, and the best way to have fun is to skip the notion that you'll be the biggest and baddest in the game. Just be the biggest and baddest you can be. If you don't want to trade, then don't. But if you want to trade, do it securely.
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I have pondered this, though am not committed to taking the time to do it, but I sure wish someone would come up with a different kind of "EULA".
The real "End User" license agreement. A license agreement submitted to the manufacturers which state "my" terms of use of their product, their terms of use of me and my information as well as what rights I reserve they may not violate.
The EULA's today are so one sided. Agree or not is the choice for the average person. Many large corporations (being recognized as individuals as well) have legal departments which negotiate terms of use for purchased hardware and software. Why can't we (besides the cost of a legal team) also have some feedback to them on the EULA we will accept.
The software evndors (HW too) almost always include the obligatory "we are not responsible for anything arising from the use of this product and we do not suggest this product is suitable for any purpose" type clauses. This is ridiculous.
Any takers on drafting such a creature? Would it do any good? Would it atleast be a stake in the ground?
Just because it has never been enforced does not mean it cannot be enforced or that it is not a legal
binding document. If that were the case when a new law was passed it does that mean it could not be enforcable until it has been enforced?
How can they call this "terms of service" when they deny in it every garanty that it will function properly or that you might ask anything about any service?
How can any of them (ToS) be said "reasonable"?
note that Blizzard Entertainment shall not have any liability for the loss of any Game Data for any reason whatsoever
H. You may not be able to access World of Warcraft whenever you want, and there may be extended periods of time where you cannot access World of Warcraft
Those are too vague to be reasonable, yet the ToS itself would be reasonable?
The GPL gives you additional rights not offered by default in copyright law. It doesn't require you do anything, it merely says "If you do such and such, in this kind of way, you're ok".
All of which is getting off-topic. The GPL is not an EULA, at least not usually (there are a lot of braindead installers out there I've noticed for OS X that force users to "Agree" to the GPL before installation, interestingly I wouldn't be surprised if non-copyright holders distributing such packages are actually violating the GPL by distributing it in such packages...
The GPL only grants rights. EULAs restrict them. The GPL says "You didn't have the right to do this before, you can now do this"; EULAs say "We don't care what copyright law says you can do, we're tearing up those rights and giving you an entirely new set."
You are not alone. This is not normal. None of this is normal.
Just as an FYI. A lot of times when a new law is passed there is a general reluctance to test it until the right case comes along.
Basically, for a while, it's just a deterrent on the fact that "someone has to be the first to test the new law". Prosecutors will waive it around, but not test it - especially if it's likely to be reasonably challeneged.
In my last company I saw a EULA that had been directly copied from a standard Microsoft Office EULA. All they'd done was to replace all 'Microsoft' in Wordpad. They forgot, however, to remove the 'Office' and Washington address, making the EULA completely useless. It looked good on the setup.exe though
Nothing costs nothing
The GNU General Public License is not an EULA. Please read it:
"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. [...]"
Now, back yo your question: "If I can view the EULA online [...] then why shouldn't it be legal?" You should have asked: "If I can view the EULA online [...] then why shouldn't it be legally binding?" And the answer would be: do you consider everything that you read a legally binding contract? When you see a sign in the store saying that when you touch anything then you have to buy it, do you think it is true?
Sincerely,
Pan Tarhei Hosé, PhD.
"Homo sum et cogito ergo odi profanum vulgus et libido."
By reading this ransom note, you agree to leave $100,000,000 in unmarked bills of small denomination in a shopping bag which you will place in a garbage can at the Starbucks at the corner of Fifth and Main if you ever want to see your baby again. You also hearby agree not to call the police, hire private detectives, or bounty hunters, or press criminal charges, or file a civil lawsuit against the Kidnappers.
You see? You see? Your stupid minds! Stupid! Stupid!
Here's a question: The article talks about what is "reasonable" and the author says there's plenty of case law defining that. But what does that mean?
Would it be "reasonable" for example for a company to prevent you from reselling the game (obstensively to prevent piracy), or would that conflict with your right of resale (if such right exists where you are)?
Here's another question: I know there's all sorts of state laws that restrict what contracts can and cant make you do. If one of these contracts doesnt include the clause about "this may not be applicable where you live" can that invalidate the whole contract , or just the offending section?
that there won't be anyone to enforce their EULA against in a few months - WoW is sucking wind compared to EQ2.
Everquest 2 is to World of Warcraft as chess is to checkers.
In that case the court determined that EULAs are enforceable because everyone knows what's in them, and everyone reasonably should expect to be bound by certain terms and conditions.
/. I have been told I was wrong, stupid, etc. When I saw this quote my heart soared. The law can be such a wonderful thing - especially when it utlizes "reasonable expectations" which EULA's (IMHO) are.
I have been arguing the above statement for months with people on
I mod down so you can mod up. Your welcome.
I'm tired of all these clickthru EULAs that nobody reads. They dilute the entire possibility of ever getting a click to be legally binding, though that would reduce a lot of legal (and other transactional) costs when the two parties actually do agree, and want to be bound legally, but are connected only by email or webpage. If EULA terms were standardized (though there might be a lot of slightly different terms), and preagreed in principle, then stored on your client machine, they would be a lot more manageable. The EULA could be automatically agreed (or declined), merely showing you a standard logo when transacting the agreement. Some sets of terms might be complex enough to remind you of their terms when transacting agreement, perhaps in a summary in your own words. Perhaps you want to see a list of other counterparties with whom you've agreed to the same terms, either automatically or before clicking "yes". You certainly want to see a list of EULAs and their counterparties from time to time. You might want be notified when a counterparty demands some outrageous terms that you decline. Or when a counterparty tries to change the terms by offering a new EULA on the same transaction later.
All these features can be delivered by a client EULA DB. It would be best implemented as a standalone app, or even OS config, that any client process could query via IPC (eg. read/writing a standard file). There have been similar projects for, say, Netscape (like the Privacy Preferences Platform), but none have borne fruit. But this kind of transaction is already old, here to stay, and increasingly unmanageable, though increasingly important. The EFF could get everything started, by spending some of our donation money on their lawyers, to collect thousands of EULAs, factor them down to their terms, and consolidate them to merely scores or hundreds of different terms. Then publishing an RFC defining the standard terms, a naming scheme, and an extension mechanism. Once the platform is defined from existing practice, one of us can write the EULA client code, with GUI and DB reflecting the RFC data structure. Licenses for that client will be worth hundreds of millions of dollars over the first few years, and the savings in frictionless commerce will net billions. Let's get at it!
--
make install -not war
I will believe that FAs can be read as soon as the first FA is read, but not sooner.
A license is revocable at the will of the licensor and therefore is not a contract.
What?
The fact is that they are extremely upopular amongst those who actually read them.
In the past, they were tolerated because, for practical purposes, they were unenforcable but there should be no need for them. Copyright law should take into account that people will want to install and use one copy of a piece of software on one machine, and that this is not an unreasonable demand.
It would be nice to have a change to the law that covers what users may and may not do without explicit permission, and invalidates EULA's agreed to after purchase.
This is actually pretty easy to enforce... All they have to do is start banning accounts. Something like, ban accounts of people that radically change their billing info. Doesn't have to be that, but you get the idea.
People will stop buying accounts if they think they'll end up losing money by buying an account that's about to be banned.
In the UK, the consumers statutory rights under the "Sale of Goods Act" and other laws are paramount, and can't be overridden by an EULA. If your country doesn't have such laws, it really should.
These laws state (approximately) that:
* Goods must have no defects, unless these defects are clearly described prior to sale
* Goods must be fit for the purpose for which they are sold
* Goods must be accurately described - i.e. no incorrect labelling on the packaging etc.
Oh no... it's the future.
1. Find something remotely related to P2P, DMCA, and EULA
2. Copy the entire text of the article without attribution
3. Watch the mod points come in
The message on the other side of this sig is false.
A license is revocable at the will of the licensor and therefore is not a contract.
Where did you ever get that idea? Yes, there are time-limited licenses, licenses that can be terminated for various reasons, but that is the exception not the rule. If you want that, you have to put it in the license terms.
A license as commonly used is simply a special form of contract, where rights are traded for money. Assuming it holds up to the legal standards, it is as good a contract as any other.
Kjella
Live today, because you never know what tomorrow brings
EULAs will come to a head when a spyware removal company is sued by a spyware maker for interfering with the EULA that allowed the spyware maker to put on the spyware in the first place, and said that the user was NOT allowed to remove it.
The EULAs are already in there, it's just a matter of time before one of these companies gets the moxie to take them to court...
And probably to the cleaners.
- The standard disclaimer applies that this is not legal advice and is only offered for your viewing pleasure.
Have I been duped ? I thought that I was going to get the full McKoy to find, once I had downloaded, it some EULA saying that it wasn't as I expected. Is Don Shelkey able to put this discaimer in after he enticed me with a promise of something that it turns out that he can't deliver ?What happens when Blizzard takes Joe Schmoe to court over eula violations and Joe simply says "Never saw the eula. It wasn't presented. I'm not bound by those restrictions."? Is Blizzard going to trot out their programmer to testify that the eula should have been displayed? Are they going to trot out some server log with "accept" on line 336297 right next to Joe's name? That seems pretty weak, and suddenly it's not Joe Schmoe on trial, but Blizzard's server software.
Ianal, but the term for this is 'judicial notice', and it refers to the courts' willingness to accept the reliability of a system used to gather evidence. For example, radar speed reading equipment has received judicial notice, so if you get a speeding ticket, the police don't need to again prove that "radar speed reading" is a reliable method of determining speed (never mind that it isn't). There's no way that Blizzard's html has ever received judicial notice, so it all comes down Joe's word against Blizzard's.
Right, but the GPL covers redistribution, not use. Under copyright law you have no rights to distribute copies of a work in it's entirety. So you either abide by the GPL when redistributing copies of a GPL program or you have no right to redistribute it. The GPL grants extra rights, it doesn't limit rights that are there by default. Regardless of whether you agree to abide by the GPL, you have unlimited rights to modify it for your personal use. This is true of any program without a EULA.
With a EULA, you are buying a right to use a copy of the program. You do not own the copy, an so you have no right to modify it if the EULA says you can't. You can also be prevented from selling the right to use the software to anyone else. The EULA can say pretty much whatever it want - e.g. "You may only use this software on leap years between the hours of 6 and 7 am"
EULAs sill remain completely unnecessary.
When you buy a book, you don't need an EULA to allow you to use the book in the intended manner...or in any other way not specifically forbidden by copyright law. In the same way, you shouldn't need an EULA to use a piece of software. Permissive licenses like the GPL only extend your rights above and beyond what copyright law would normally permit you - the GPL isn't required in order to just _use_ a program.
If I remember correctly, there's some confusion over whether copyright law allows you to make incidental copies needed in order to use a program as intended (eg. copy from CD to harddisk to memory). The law has a provision that seems to allow this - but due to some odd phrasing by the committee that approved the law, some (but not all) courts misinterpret this. Plus, there's some confusion over whether the Universal Commerce Code or UCITA allow "shrinkwrap contracts".
But regardless, society's interests are not served well by allowing EULAs. Copyright law alone provides adequate protection for software publishers, while still preserving rights for the public. Copyright should be considered as a sort of default EULA, so that the company and end user don't have to individually negotiate a contract each time someone wants to buy something. My opinion is that publishers who use DRM, region coding, EULAs, or other methods that restrict the end user should not receive protection from copyright law. This would be similar to the balance between patents and trade secrets - you can choose one or the other to protect your invention, but not both. DRM, for example, restricts the end user's rights beyond what copyright law allows them to do. So if a company chooses to use DRM, they should not receive any protection for the work under copyright law. (But that's just what I think would make sense, not the way things work...)
If I can view the EULA online, for example, as with GPL'd software, then why shouldn't it be legal?
(GPL is not an EULA) Because there's no gaurantee that you've been presented with the EULA nore is agreement a condition of sale.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
World of Warcraft EULA http://www.worldofwarcraft.com/legal/eula.htm
Vermifax
Logout
Minors aren't allowed accounts in MMOs. A guardian is required to register the account, they are then allowed to give access to a minor.
Just because it has never been enforced does not mean it cannot be enforced or that it is not a legal binding document.
But it doesn't also mean that we should believe in any bullshit, so I agree with gp.
If that were the case when a new law was passed it does that mean it could not be enforcable until it has been enforced?
THIS IS NOT A LAW THAT WAS PASSED. We are talking about the EULAs, not the law. And no, it doesn't mean that nothing that hasn't been enforced yet could not be enforcable, but that when it has never been enforced in DECADES, than it is a good bet to ignore it, UNTIL it is finally enforced. Read the post you have replied to.
Lawyer Shelkey, of the Corporate Finance and Technology department of his law firm, says that, basically, EULAs are legally binding contracts. He ignores the major factor in the controversy: no one reads them before indicating they accept. It's like a contract a deaf person makes in sign language with an unsuspecting person, sealed with a handshake. Of course Shelkey doesn't bring that up. He represents coroprations, and his article is just a friendly warning on behalf of the interests that pay for his supper.
He doesn't mention a single interest of the End User agreeing to these End User License Agreements. The closest he comes is in dealing with the "issue" of (threat posed by) "virtual profiteers" who ignore EULAs to steal the product and compete with the EULA issuer. How about when millions of us clickthru a long, complex EULA to use some simple, cheap SW, but then are confronted with demands from the licensor, based on borderline "reasonable" terms we unknowinly agreed? Since conventional wisdom holds that EULAs are unenforcable (for some good reasons, but defacto practice is strongest), millions of reasonable people ignore them, though they do "read anything they sign", as everyone knows to do. Shelkey's selfserving warning isn't the law. At least he's candid up front, stating that his article " is not legal advice and is only offered for your viewing pleasure". Just like the EULAs he knows and loves.
--
make install -not war
There was almost no real useful information in this article. It basically amounted to "EULAs are enforceable, usually, so long as the conditions aren't outrageous." It doesn't answer any of the really hard questions about EULAs. What happens when someone who isn't old enough to enter into a legal contract (which is to say, probably half of everyone who plays these games) clicks through an EULA? What if I don't like the EULA, but the store/company doesn't want to give me my money back? What if I find a way to install and run the game without ever reading the EULA - am I still in violation of it, even though I never saw it or agreed to it? If I don't agree to the EULA, can their copyrights restrict my use of their software for private, non-commercial purposes?
Placing the EULA inside that sealed envelope or some other sealed package that requires you to force agreement with it in order to get to it in the first place is best described as "entrapment."
OCO is Loco
As the article pointed out, the courts have already decided this. The decision was that EULAs (shrink wrap or otherwise) are enforceable contracts.
For more information look into the bnetd court case. Last year the court found in favor of Vivendi on all counts. The basis of the entire decision was that since the EULA was a valid contract.
This is exactly the same as if you found a piece of paper in the trunk of your car after you had bought it. It's just a piece of paper until you sign it...
True, but the analogy is more like you cannot drive the car until you read the paper. For example, the keys are in a pouch attached to the paper and it says "by opening this envelope you agree to these terms..." Either way I think it is a stupid idea, but the legal system does not agree with me.
24 beers in a case, 24 hours in a day. Coincidence? I think not!
Fundamentally OOP, XML, RDBMS are very different: RDBMS (relational databases) basically have no true classes, in that you can't inherit 1 table from another. XML can have class-like structures, but they are assigned to an entire document as a whole (through DTDs). OOP has true classes all the way.
Today, these technologies are like oil, water and, well, something else- The next big advances in programming, I think, will come when people learn to make these ideas come together seamlessly- People will say that they already can do this, but I think it is very clear that they don't. C-Omega is Micro$oft's starting salvo in this new technology battle.
Try taking your copy back and getting a refund from the place of purchase. Maybe WalMart would do it, but that's probably the only place and even then, it's iffy. No one takes back opened software anymore. And of the places that used to (specialized game stores, such as Electronics Boutique), even when they would refund money on opened games, they never would for MMORPGs due to them not knowing if you were still using the key online (I tried it with UO).
The GPL is not a EULA because under GPL thinking there's no such thing as an End User. This is the part that many corporations (Microsoft included) still do not get.
I doubt Blizzard is worried about the individual player, their concern is more for companies that do this for profit. As odd as it may seem these companies apparently hire chinese labour specifically to farm and sell for profit.
Individual players would have little to no effect on the economy, bots and characters on every server farming 24/7 do.
From Black's Law Dictionary:
license, n. 1. A permission, usu. revocable, to commit some act that would otherwise be unlawful; esp., an agreement (not amounting to a lease or profit à prendre) that it is lawful for the licensee to enter the licensor's land to do some act that would otherwise be illegal, such as hunting game.
How much clearer can you get?
What?
On one side of the picture, Blizzard is trying to protect the quality of it's product. While they cannot prevent informal agreements between people, they do want to stop the Walmart style superstores (Yantis, etc.).
See here is the problem with a secondary market that involves real cash: it simply reduces the illusion of the game. If you have ever played a P&P rpg this is akin to Metagaming. "My ring is worth $150". The game ceases to become a game for certain players and becomes a new marketplace - bringing with it all forms of behavior that simply does not promote the original vision of the game.
What you end up with are players that essentially become "farmers". The unfortunate side effect of this is that they are impeding upon the casual player's experience of (Blizzard's original vision) the game.
You really almost have to consider WoW as a form of artwork that Blizzard feels is devalued by outside monetary influence.
As far as the idea that Blizzard should welcome and embrace online trading of items: Show me an online game that does this now (seriously - I would like to know). Every server crash would be followed by inevitable lawsuits.
Now, see, I always thought one of the goals of business was to not pyss off your clients.
Apparently I was backwards on that. You're supposed to threaten to sue them instead.
That's a Good Way to sell more games!
-- Just another unsolicited opinion... from the Peanut Gallery.
It's a VERY good idea.
It works this way. I do some hard work collecting stuff, building stuff etc. Why the hell SHOULDN'T I be able to sell that on? It took time and effort and in my mind (and my job) that's worth money.
You can argue about the "fairness" of it if you want to but life and money AREN'T fair. Rich people get better stuff than poor people... If poor people want to generate goods to sell to rich (probably idle) people then MORE POWER TO THEM.
Time flies like an arrow. Fruit flies like a banana.
Vermifax
Logout
Nice summary, but contracts also requires the right to refuse and store sales are covered by doctrine of first sale. IANAL, however I have consulted one on this very issue.
Right to refuse:
If you're put in a position where a contract is offered but no option to refuse is given, or the refusal includes a penalty the contract is not enforceable. THEY MUST BE FREELY ENTERED INTO.
So for example you buy a product, you get it home and it has some nasty POS EULA associates with it.
You can: accept the nasty POS EULA.
Or: Return at your own expense and time, and maybe even have to pay a restocking fee. I.e. you pay a penalty.
The other point is the doctrine of first sale. When you sign up to an online gamer, you have not at that point bought the product, so are not protected by dofs.
When you walk into a shop and buy it you are, the extract terms are foisted on you after.
Then Blizzard sues them for copyright infringement. By default, you don't actually have the right to run Blizzard's software. It's copyrighted, which means you can't copy it (for example, to your hard drive during install), without their permission. So if Joe never read or agreed to the EULA, then he "copied" the software without permission.
My problem with EULAs is not so much their presence, but the complexity of the language in there is usually enough to scare most people off. I really feel that they need to be accompanied by a FAQ or short absrtract explaining the 'spirit' of the EULA.
Jumpstart the tartan drive.
If two people make some deal, what would Blizzard have to do with it?
Nothing except that they are the ones holding the item for you. Think of it like a valet parking garage. You give your car over to the valet dude to park your car and he crashes it. He doesn't care that you just sold the car but he is now responsible for the loss of the car. So he has insurance to protect himself should he damage a car that he is parking.
Blizzard is afraid that they may be blamed for any faults that happen while they are "valeting"/housing your things.
It means that they are going to have to be insured for losses(if the server crashes) as selling the "items" on ebay is proof of value. If they can stop that from occurring or make it illegal they avoid the legal necessity of liability insurance.
Slashdot, home of supporters of free software, free music, and free speech.Except for Moderators that disagree with you.
Indeed. But there are three more letters. "E" and "U" stand for "end user."
Sincerely,
Pan Tarhei Hosé, PhD.
"Homo sum et cogito ergo odi profanum vulgus et libido."
Here are a couple of excerpts from Blizzard's EULA (or Terms of Service) from their website:
"...nor may you use any third-party software which is running at the same time as World of Warcraft that accesses files which are part of World of Warcraft, for any reason whatsoever..."
So if my virus scanner kicks off while I'm playing, then I'm in violation. I'm sure they wouldn't really care but this clause exists so they *may* terminate your account if you're up to something nefarious (like examining files for ways to cheat).
"You may not exploit World of Warcraft for any commercial purpose, including, but not limited to, performing "power leveling" services to other users of World of Warcraft for "real" money..."
and
"Remember, at the outset of these Terms of Use, where we discussed how you were "licensed" the right to use World of Warcraft, and that your license was "limited"? Well, here is one of the more important areas where these license limitations come into effect. Note that Blizzard Entertainment either owns, or has exclusively licensed, all of the content which appears in World of Warcraft. Therefore, no one has the right to "sell" Blizzard Entertainment's content, except Blizzard Entertainment! So Blizzard Entertainment does not recognize any property claims outside of World of Warcraft or the purported "sale" in the "real world" of anything related to World of Warcraft. Accordingly, you may not sell items for "real" money or trade items for things of value outside of World of Warcraft."
This seems to be the current portion of the policy that's caused the current stir. I think it may be less about the game experience (players souping up their characters without "earning" the items, etc.) than it is about Blizzard not wanting their product to be a profit source for anyone else. Maybe I'm too cynical, but it's easy to imagine the company as thinking, "Well, we just spent X dollars to create this product and now some chump who's good at the game is going to ride our coattails to the bank? Not if we can stop it."
There are portions of EULA's that I wish weren't there. But I bet game companies would actually face lawsuits from some if they didn't cover their asses as well as they do.
I wonder what portion of users actually experience a "rip-off" from normal EULA's? I know that alot of folks have been burned by agreeing to allow spyware, etc. on their machines, but I haven't really seen any stories about anyone suffering from a game EULA...
I report to Colonel 2.6.1 and General Chaos is his boss.
There may be (and I daresay there are) good grounds for challenging the validity of EULAs, but this case really isn't one of them.
You have to sign the EULA to register your account and credit card information.
A: "I never saw the EULA, my 12 year old son registered the account."
B: "Your 12 year old son isn't legally permitted to use your credit card."
Not to mention that a copy of the EULA comes in the box, and is presented when you fire up the game for the first time, and any time Blizzard patches the client.
This has been going longer than Bush has been in office. Heck, I remember a time I wanted to return some app but I couldn't since it was copyrighted and it's ilegal to give a refund for copyrighted material. So I blew $30 for an app that couldn't run on my PC without crashing it. MS has a gold mine with EULAs and the anti-refun for copyrighted material law.
A license is revocable at the will of the licensor and therefore is not a contract.
Did you ever sign an employment contract? I have signed several. Most said something along the lines of "we can fire you at will, terminating this contract." While certainly not a license, it definitely is a contract.
24 beers in a case, 24 hours in a day. Coincidence? I think not!
The problem with that is that as soon as the company acknowledges the real world value of an item by allowing its sale, and even participating in the sale itself, they are liable to changes. If I have a +5 Sword of Decapitation, and Blizzard realizes it's too powerful, they can't nerf it to balance the game. If they change it to a +2 Sword of Decapitation, then I have a right to sue them because I paid $200 for this sword through their escrow service, and after the transaction took place, they degraded my item. It's like a car dealership selling you a car, and then coming by your house one night and replacing the 17" aluminum alloy wheels with 15" steel wheels with KMart hubcaps. So now they can no longer balance the game. There are other issues at stake as well. I want to play the game, but I don't want to spend an extra $200 a month on it. I want to be able to get the items via in game methods. And as soon as it becomes easy to sell that +5 Sword of Decapitation to the highest bidder for real money, who's going to sell it for in game money anymore? What you're proposing is an interesting business model, but the game has to be planned that way from the beginning, and players have to know it's going to work that way. There's at least one out, or coming up, that does work sort of like that. Instead of players selling, though, it's the company itself. The game is free, except if you want the cool items, you pay the company directly for them.
Slashdotting a Nuke powered site (like the one that was linked to in the orginal news article) probably isn't a good idea :P
They don't handle high traffic very well
On the subject of EULAs, I think that it's good that Blizzard is enforcing it as sites like IGE that sell stuff for MMOs can really destroy the economy of a MMO.
Because there's no gaurantee that you've been presented with the EULA nore is agreement a condition of sale.
Good point. I hadn't thought of this. Maybe we need a new way of selling commercial software. Huh. Wishful thinking.
24 beers in a case, 24 hours in a day. Coincidence? I think not!
If the Blizzard cut is more than a few dollars I bet nobody will use the escrow service and will continue as-is.
Offer, acceptance, and consideration are the way to evaluate if a contract is legally enforceable. A contract that's not enforceable is merely a promise. A promise is worth however much you believe in the credibility of the issuer. Contracts with minors If you are under 18 and decide to recind a contract you owe restoration, but the adult party owes restitution. The differnce is clear. If I, an adult, sell on ebay $500 worth of comic books to a 12 year old and later the 12 year old wants out of the contract -- I have to give exactly $500 back. But the 12 year old just has to return the comic books in whatever condition they are in (even if the child spilled sode on them). If the minor lies about age, the child loses all protections from the law that protects minors. Intoxicated while entering contract If I am drunk and get into a contract with another person and then later want out: I owe restoration. That means I must return the car, comic books, or whatever, in original condition.
the GPL restricts rights as well. It states that you must release your changes to source under given circumstances. The BSD license, however says "Use it, do what you want."
This is a very interesting point. When I sign a contract, the terms that both parties agreed to are pretty much set in stone. They can't update the contract, and then force me to sign it. If there's not something in the new contract that piques my interest, I can say "Nope, I like the original contract better." And under the terms of the contract, they have to continue giving me what the original contract specified for as long as I continue my end. Why, after a change in a MMORPG EULA, isn't there a button that says "No thanks, I'll stick to the original terms."? I guess a lot of depends on the EULA. If it's made to come up everytime you play the game, the length of the contract could be worded to be for "one play session". In which case you have to sign a new contract each time you play the game again. WoW isn't like this, it only comes up when it changes. But I guess somewhere buried in there is something that says this contract is binding until we change it, at which point you must agree all over again.
"You are presented with an EULA (more appropriately called a Terms of Service Agreement) before you pay for the service."
Not true. You pay a monthly fee, but can be
'presented' with a new agreement at any time.
(Any time you log on it can be a new agreement)
The timing does not meet the requirements
of a contract.
Now I doubt this click-thru is valid since the machine has been long since paid for, and the contract is with a different vendor. But is this term likely to be enforceable as "reasonable"?
MS biggest competition and profit threat is themselves, people moving licences from old boxes.
Oops: Intoxicated while entering contract If I am drunk and get into a contract with another person and then later want out: I owe RESTITUTION. That means I must return the car, comic books, or whatever, in ORIGINAL condition. RESTITUTION is the higher standard and requires a complete return to its original value. Used for adults & drunks. RESTORATION is the lower standard and just the return "as-is" of the item. Used mainly to protect kids.
> Then Blizzard sues them for copyright
> infringement. By default, you don't actually
> have the right to run Blizzard's software.
> It's copyrighted, which means you can't copy
> it (for example, to your hard drive during
> install), without their permission. So if Joe
> never read or agreed to the EULA, then
> he "copied" the software without permission.
Only two problems:
a) only the EULA says that he licenses the software rather than buying it. Since the store sold it to him as "a game" (rather than "a license to play a game"), he could argue he thought he had purchased the game and had the right to use it.
b) if the CD has autorun that kicks off the installer, but that somehow didn't present the EULA, then Blizzard invited him to copy the software onto his hard disk rather than him doing it off his own bat.
... Why couldn't they do this sooner when it came to people creating and/or using hacks for their games? If the EULA is enforceable, not only could game companies make sure the game remains fair for everyone, they could find a gold mine in taking a lot of these people to court, especially those that create hacks. Not that I want to see a world of law suits surrounding the video game industry, but I'm not thinking there would be much using of these programs after a few court cases anyways.
Paul
I've saved tons of money and time by having my online gaming done via a third party in a foreign country.
EULA's for free software present a murkier matter
Offer- Want to use my software? Acceptance- I use your software. (The mirror image rule is satisfied, since every contract must be able to be reversed)
But what about consideration?
Consideration doesn't have to be monetary, directly.
But it must be something of value
It can be another intangible good. Like, in a good NDA it would be written as a promise to non-disclose by both parties. That would be the consideration for each (not to disclose the other's information).
Thoughts?
Granted, I wrote the articles, but discussion of EULAs and games was done just a week or so ago at Grimwell dot com.
/.
For instance, my article here about EULA validity, posted 8 days before this "new" article, and another on online sales that went up over the weekend.
Wow, color me unimpressed that this was up on someone else's site and then self-submitted to
I mean seriously. I don't self-submit my stuff. Less self-whoring please.
"I do not regret the things I have done, but those that I did not do."
"Having someone else act on your behalf, regardless of age, is the same as you doing it yourself"
Then how come drunk taxi passengers aren't charged with DUI?
They whose government reduces their essential liberties for temporary security, receive neither liberty nor security.
If one party can end the agreement at their will, it probably isn't an enforceable contract.
No, it does not restrict your existing rights. It gives additional rights. You are right that the BSD license gives more rigths, but that's not the point.
If you get $10 as a gift from A, and you get $20 from B, that does not mean, that A has taken $10 from you, does it?
Real life is overrated.
Then how come drunk taxi passengers aren't charged with DUI?
They would be if they specifically paid the taxi driver to drive recklessly whilst under the influence.
Could you even return it? You're often not allowed to return software after you've unsealed the media.
...it did a pretty good job of showing examples of other cases where you order something, but you do not get the full terms until later. A typical example was ordering travel tickets by phone. There's a huge list of travel conditions, but you don't get all of them quoted to you over the phone. You're expected to know "standard" terms for travel.
Another example quoted was purchasing concert tickets. The terms of the concert may be no cameras, and it is enforcable. You agree to behave after the rules of the concert by being there, even though you didn't agree to those terms before purchasing the ticket.
The court made a pretty good case that this would also be true of EULAs. When you purchase the box, you are aware that terms and confitions apply. You may not know them in detail, but you know you'll probably be presented with an EULA. That is the sticky part about "reasonable" terms.
It is also greatly influenced by what materials you do have to do by. If you purchase "FooBar personal edition", there's a different understanding of reasonable than if you purchased "FooBar enterprise edition". Acting deceptively is a good way to get your EULA thrown out.
What I did like was that it was quite clear that if you have the means to easily present the contract up front, there's little excuse. So if you're e.g. offering commercial software for download, you'd better present those terms before completing the purchase.
One thing it didn't cover (as it was obvious from the case that he was aware he was buying a personal edition), was whether the terms should be available up front, e.g. on a website. I believe there's a case about this going on now, and I hope the answer will be yes. In my non-lawyer opinion it is certainly "reasonable" to expect the terms to be available on demand.
Oh, and for the love of god.. can we please stop the "minor/drunk/cat/installed it some other way" solutions? If you reasonably knew the software is covered by an EULA, the court will take your use of the software (when sober, or whatever) as behavior indicating acceptance. Think of it as raising your hand at an auction, while it is not a signature the court will see it in the same way.
Kjella
Live today, because you never know what tomorrow brings
"We reserve the right to change the terms of this License from time to time." is the biggest broken broomstick of contract law.
Sometimes seventeen/Syllables aren't enough to/Express a complete
I've got a better idea: Trade in-game items for in-game items and currency. No muss, no fuss.
So many people don't understand that it's a fricking game . Unlike so many other things in life, you shouldn't be able to just sit there and throw money at it and expect to come out on top. A sense of fairness (even if only perceived) is essential to most people's enjoyment of a game. Legal liabilities aside, Blizzard is trying to provide that sense of fairness.
In the future, all spacecraft will be made of cheese.
In the UK you have to make it clear when someone purchases your product (not when they get it home and open the box) that there are conditions of ownership. AFAIK that means unless they actually tell you at the check-out, or make you sign the EULA on the spot or have a big unmissable sign on the box then the EULA is worth shit, and its basically an offence to misslead someone about their rights to get them to buy something - you can't call a white kettle black and expect the customer to return it if they didn't want that. anyone care to correct me? As nanny-nation as it seems i think its a good idea to make it hard for companies to sell restrictive things because consumers are sheep and i don't want the sheep masses doing stupid things like buying "PC only DRM'ed CD's" because they should be listening to me damnit.
This comment does not represent the views or opinions of the user.
You got pwned by a front line monkey.
Most EULAs are in the install process. You literally cannot install the software without it popping up. Ones for online games may pop up every time you connect.
Precident seems to be that courts do accept EULAs, so it sounds like that isn't an issue.
Doesn't anybody else think the judges are just as PO'd as everyone else ise?
IANAL, but my father is, damn good and thorough one too.
Knowing this, when he bought his first computer I contacted the vendor, had them send all the EULAs so he could review the contracts before he entered into them. When I presented him with the paperwork, he gave me this puzzled look wondering what he was supposed to do with all that crap.
I use GPL'd software when convienent, when not, I don't push the envelope as far as legality goes. Mabye I'm niave, but I think that if I ever come before a judge. I'll probably have an ally on the otherside of the bench.
What about Free MMO's and their Terms of Service?
C hatPolicies .html
p x
Where there is no exchange of $ for services / access to the site?
Are those terms legally enforceable?
See for instance:
http://www.white-wolf.com/Interactive/
or
http://eng.pristontale.com/Customer/policy03.as
---
"There is always some madness in love. But there is also always some reason in madness."- Friedrich Nietzsche
Again, RTFA more closely. ProCD?
I've not played WOW, but I thought they had an in-game auction exactly to eliminate the need for outside sales of equipment and the like.
One thing I've wondered for a while - how can these real-world transactions even work? After you pay for an item, do you agree to meet at a specific spot in the game and the guy just drops the item for you to pick up?
"There is more worth loving than we have strength to love." - Brian Jay Stanley
For more information look into the bnetd court case.
For contrary information, look into Softman v. Adobe, in which the court found that what occurred was a sale, and not a license, regardless of the fact that Adobe really really wanted to treat it as a license.
A pretty strong argument can be made that the contract is formed prior to you opening the box. Lets say I advertise that I am selling a football. You come to my store, you bring the football to the counter, and I sell it to you for $20 bucks.
You go home, unwrap the football and find a mechanism that was hidden from view when you purchased the football that contains a laundry list of provisions. This mechanism essentially renders the football unusable for its primarily intended purpose until its removal - you must take an affirmative action to remove the mechanism - you have to push a little button that says "I agree." The mechanism states that by pushing that button you agree to all those terms.
The lawyer that wrote that article would say, you don't own that football yet, that no contract has been formed until you push that button on that mechanism and only then is a contract formed.
I would argue the contract was formed when you purchased the football at the store.... And that the existance of the mechanism has breached the contract. Therefore I could at that point in time sue for not just the return of my purchase price, but also other consequential damages - the cost of my time to buy and return the item; the actual travel costs (i.e., gas and milage); etc.
Of course, if I hit agree I may be deemed to have waived the breach and accepted a new contract. So that is another issue. But there is some inherent level of unconscionability/duress in that type of arrangment. It also reeks of fraud - it is essentially a bait and switch situation. Buy the product first, then only after you have paid we are going to throw in all these terms that you have to agree to in order to use the product you already purchased...
Also, do you really think you can decline to accept the terms?
To use his MMOG example, try opening the box, opening the CD and putting it in your computer. When the EULA finally does pop up (which is not always before installation...) click decline. Take that opened box back to the retailer and try to get a refund.... Good luck....
Actually the TFA says that it depends. In the court cases it was more that it was unreasonable to copy the database of phone number wholesale and market a competing product. If instead say a EULA on retail software forbade publishing benchmarks, it would likely get kicked out of court.
There is a lack of consideration for EULA's on retail software. Money exchanges hands before the contract terms are presented. Then EULA's take away your rights while not giving anything in exchange (I do not consider the right to use the software a fair exchange because you already purchased the right for that at the store when you bought the software). Presenting the EULA to sign on to thier servers is no more enforceable when that is the only way to play.
Just a Tuna in the Sea of Life
It is if both parties can end the agreement at their will. They can fire you at will - you can quit at will. Employment contracts/agreements are sort of a specialized area.
>With a EULA, you are buying a right to use a
>copy of the program.
Since there is nothing that prevent you from using the program to start with, what is the point then?
>You do not own the copy, an so you have no right
>to modify it if the EULA says you can't.
One right and one wrong statement. If you bought a copy in a store (which you usually do, normal sale laws regulate this), you do indeed own that copy which is different from owning/holding the copyright of course, which you don't do. The right to modify is regulated through copyright laws (no need for any EULA there either unless one want to grant such a right possibly) and you need a permision to do so.
>The EULA can say pretty much whatever it want -
>e.g. "You may only use this software on leap
>years between the hours of 6 and 7 am"
Disregarding any other problems with EULA, it can most definately NOT say "whatever it want". Most sane countries has laws regulating sales, consumer sales and similar situations which dictate manything which can't be changed or contracted away no matter what. Such things are pointless to put into a EULA for example.
So what if I carefully cut around the seal, opening the case but not damaging the seal?
Justice is the sheep getting arrested while an impartial judge declares the vote void.
You can't take away a right you never had.
Understand that, and you understand why the GPL is not an EULA, and an EULA is an EULA. You start with the right to make backups for your own personal use, benchmark, reverse engineer, etc. These are all fair use. An EULA removes those rights, usually without granting any new ones.
You are not alone. This is not normal. None of this is normal.
1) Blizzard reserves the right to change the EULA at any time. If you do not agree with the new EULA you are out your character, current subscription, and the cost of the original game. Does Blizzard have the legal precedence to do this?
2) Blizzard claims that all in game content belongs to them and cannot be sold for monitory value, yet they gave away a free in game minion with collectors editions. Doesn't this sound a little 2 faced?
3) How is WOW different from Microsoft Word? Currently Microsoft doesn't claim the right to all documents produced and if they did it most certainly would not be supported by the courts. Word Documents and WOW characters both took time to produce, the product was paid for, and I accept was clicked on the EULA. For those of you who are going to argue that the character data is on a WOW server I remind you that in most cases your web page which you legally own the content of (assuming you didn't steal your site content) is also hosted on another server which you have an agreement with to provide rent for the storage, CPU usage, and bandwidth.
(All arguments assume software piracy is not an issue)
I am by no means a legal expert nor am I attempting to say that blizzards policy is right wrong or indifferent, but I would like to know what slash dotters think about these questions.
And there is good law out there holding various EULAs are not enforceable. So this is still a gray area of the law, and any attorney that stated flat out that shrink-wrap licenses are per se enforceable (and I am not addressing their terms, just the device itself) would be risking malpractice. You simply cannot make such an unequivocal statement based on the current law on this topic.
All it takes is one state's supreme court to say they are not enforceable and then at least for residents of that state the ballgame would be over for the software company....
You can't control eBay. You can't control the gentleman's handshake at the pub.
Correct. However, if you have any legal clout (as in an EULA clause that is proven valid in court) and also a few dedicated employees, you CAN significantly reduce the harm caused by real-money trading.
Its simple. Blizzard can hire someone who's full-time job is to browse ebay listings, find people who are selling game content, and inform ebay "that is our property, not theirs, please take that offer down."
It won't stop all real-world trading. However, it will reduce it enough that the impact to the in-game economy is minimal.
That makes the majority of the players happy, is legal and reasonable, is affordable, and is easy to implement.
I, for one, hope Blizzard does this.
Yes, you could always copy the contents, then scratch or otherwise damage the disk such that it would not work, but then all you'd get from the vendor is a replacement official copy, not a refund.
OCO is Loco
All your children are belong to us!!
You got it.
It's like any other transaction, it's based heavily on the reputation of both the buyer and seller.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey
>Then Blizzard sues them for copyright
>infringement. By default, you don't actually
>have the right to run Blizzard's software. It's
>copyrighted, which means you can't copy it (for
>example, to your hard drive during install),
>without their permission.
Almost every country has exceptions so that such copies needed to run for example software are NOT considered as infringing ones and hence no permission is needed. You should check your own countries copyright law, it probably has such a part in it.
Collecting money, items, and experience in the game is a time-consuming activity; it requires x amount of game-hours to get a magic sword, $100,000 gold, a level 50 character, whatever. Obviously. This time is translated into revenue for Blizzard, as the "casual" player will require y months of subscription service to achieve those goals. If a rich new user can buy his way to level 40, or get that magic sword, Blizzard loses y months of revenue from that player. The seller recoups his time-money investment in the game and Blizzard gets nothing. Furthermore, the inflated new user will start out at the end of the designed achievement system and grow bored with the game, perhaps cancelling their subscription and further eroding WoW's profitability.
Together, we will drive the rats from the tundra.
The "chance to read" is not the same as signing a document or clicking an acknowlegdement button online. The difference is that you have to be presented with the contract prior to purchase. That is the litmus test in this case and it is the whole point of the article. Unless some exchange of goods or money is occurring with the contract then it is not enforceable. With shrinkwrapped software there is no exchange with the contract because all exchanges have already been completed. It does not matter if you sign the bottom of the license and mail it back to the company. It is still not enforceable because it is a promise to make a gift (giving up your rights to use the software how you please for no exchanged value).
...any attorney that stated flat out that shrink-wrap licenses are per se enforceable (and I am not addressing their terms, just the device itself) would be risking malpractice.
And that's exactly why, in the article, the author says a reasonable lawyer will tell you that yes, they're enforceable, but with some caveats.
Thinkin' Lincoln - a web comic of presidential proportions
What part of "There is a common perception that EULAs have not been tested in court. This is incorrect. They have been. In fact, very recently Blizzard's EULA was enforced in two separate cases and relief was granted based on the EULA's terms." don't you understand?
Thinkin' Lincoln - a web comic of presidential proportions
I also recall hearing of one Economics professor who allowed students to get a raise in their grade by bribing him; $100 per percentage point, max of ten points.
//Information does not want to be free; it wants to breed.
Many people are asking "why not allow users to sell items for real cash?"
Exhibit A: Diablo 2
In Diablo 2, another Blizzard game, companies would create users and spam every game repeatedly attempting to sell characters at a certain level. If you've played in a room with more than 3 people, you saw this pretty much the entire time you were there. It probably ran a few people off of the game servers, as they may have wanted to play with other people without locking things up with a password.
Fast forward a couple of years.
Blizzard is making a MMORPG. They have seen the ads for "buy a character at level 70 in 3 days!". They don't want accounts transferred because it leads to this spam. Same would go for people trying to obtain certain items for sale outside of the game. Allowing this would run people off of the game, thereby depriving Blizzard of business. Now, users can still trade items freely with certain people, they can auction items away, as long as everything stays within the game. They set up a chat channel for buying and selling items within the game. Enforcing the EULA in this regard is merely keeping the spammers and farmers out of the market, thereby granting users a more pleasant environment, and therefore a more valuable service.
I see nothing wrong with including a clause for preventing users from selling accounts or in-game items outside of the game.
true, but ProCD is only binding in the 7th circuit.
between the greater and lesser infinities sleep the dreams undreamt
For example, a contract isn't legally binding, when you sign it if you are drunk (unless you say later on that you actually agree with the terms in the contract, then it's binding). The reason for this is, that when somebody gets you drunk and lets you sign a contract, you can't possible be forced to do things you don't want. If however, you afterwards think that it's a good contract, you have a valid agreement.
Furthermore, a contract isn't legally binding if you are forced to sign it. (Either by violence, or psychological means or whatever). Let it be clear that IANAL, but I would consider buying a version of Photoshop for let's say 2000$ a way to force you to accept the agreement, if you cannot get a refund from the store/producer.
On a sidenote, you can't get drunk and then click the EULA, because that would be abusing your rights, which is also punishable here in Belgium
On the other hand, if you buy the game, and you agree to the EULA (be it one time, or every time), I don't think you can feel "forced" to click it. Even more, by paying the monthly fee (this concerns MMORPGs afterall) you actually proof everytime that you agree to the terms of service. So whilst the article is probably mostly correct, I find it disappointing that it doesn't go into further details on the contract law.
That we should impeach Presidents when they admit to knowingly signing unconstitional bills? Isn't their first and foremost duty to uphold and defend the Constition of America?
Forget the whales - save the babies.
This is so OffTopic it isn't even funny.
I guess today is a passable day to die.
The answer to the question of whether a EULA is enforceable cannot be yes given the lack of case law in most jurisdictions on this point (contrary to his suggestion that most jurisdictions have ruled on this issue). I am willing to bet the vast majority of states have not addressed this issue. Contract law is a matter of state law. So the 7th Circuit's opinion in ProCd is really only valid until the Wisconsin Supreme Court rules on this isssue. If the Wisconsin Supreme Court ruled tomorrow that EULAs were not enforceable as a matter of Wisconsin law, it would in effect overrule the ProCd holding that the contract at issue in that case was enforceable. The 7th Circuit in the future would be bound to follow the Wisconsin Supreme Court's ruling, and not the ProCD holding.
If an attorney in Nebraska (a quick example - I am sure there are more) stated that EULAs were enforceable, they would be doing so without any binding case law to support that statement. Not a position I would want to be in....
Beware, his bill will arrive at the end of the month.
What I was contemplating a while ago, as I was reaching the age of 18, is that until that point I was legally unfit to sign a contract(at least in the states)- hence, a EULA. But considering that a large number of users of computer programs, and presumably a large number of the people who install and click through the EULA, are all under 18, and therefore legally unable to bind themselves to a contract.
Nobody's mentioned this, as far as I see, but it seems like a particularly interesting threat to EULAs. I mean, with any other contract they'd ask you, "Are you legally able to sign this?" because there are people there holding the pens whose vested interest is in making a legitimate contract. But since EULAs are automated, its a different matter, and means that probably a huge number of them haven't been agreed to legally.
Just an interesting though.
They have a great mail system in-game in where you can have COD for product you sell. You can mail the item to the person (for a small 30copper fee) and they only get it when they pay the agreed-upon price. This lets people sell items without being in-game to do so. Plus, they have an auction house where you can sell stuff to the highest bidder. You are ALWAYS allowed to examine the item before purchasing it, whether in the auction house, trade windows or the mail system.
The trade windows make it clear what each person is getting, so no cheating their either. It gets a bit trickier when you're selling services like enchantments, but Blizzard found a nice way to do that (a non-trade spot in the trade window where the other person can interact).
Real cash would mess up the game economy and create potential legal problems for Blizzard. I think they really thought stuff through (except for server load!) and really have made WoW one of the best games of 2004.
that restriction only applies to use and modification of the source code.
it has no impact on use of the binaries.
you can use GPL software (but not GPL code) without agreeing to the GPL.
Blizzard won't have to sue anyone. The data is on their servers, they just delete it or close the account of the offender permanently. If users try to sue them, Blizzard will just show that they were following the mutually agreeed upon contract to the letter. The user may not have seen the Terms Of Service before they bought the box on the shelf, but they sure did see the TOS before they paid their subscription.
Don't moderate flamebait as Troll. Know the difference or you will be Meta-moderated.
that is not correct. It states that any changes I make to it must be released. That is a restriction. It is not like the money analogy you used. It would be like saying "here is $10, if you make any money on this, tell other people how you did it"
The GPL IS an EULA. They both grant the user specific rights beyond those granted by copyright law. The only difference is that the GPL grants you many more rights than a typical EULA.
For example:
Both the GPL and typical EULAs disclaim liability for patent liability incurred by use of the product. That's why SCO was suing end users and spreading FUD.
Where a typical EULA prohibits redistribution, GPL sets conditions for redistribution. But they both subject the user to contractual obligations related to redistribution.
The L in both cases is for "LICENSE" which is the type of agreement/contract you enter into by clicking on the "I agree" button. Just because most users won't edit or redistribute the source code doesn't mean that the user isn't subject to the terms of the GPL when using the software.
The reason they look so different to most people is because from an end-user perspective, the GPL is completely non-restrictive, while a typical EULA has numerous restrictions. Only when you get into source code and redistribution does the GPL start to restrict your behavior, and even then it is still much less constraining than a commercial EULA.
We are the 198 proof..
>>You do not own the copy, an so you have no right
>>to modify it if the EULA says you can't.
>One right and one wrong statement. If you bought a copy in a store (which
>you usually do, normal sale laws regulate this), you do indeed own that
>copy which is different from owning/holding the copyright of course,
>which you don't do. The right to modify is regulated through copyright
>laws (no need for any EULA there either unless one want to grant such a
>right possibly) and you need a permision to do so.
Ah, but if you look at most EULAs, they contain something like the following language: "This Software is licensed, not sold. You may not decompile, or disassemble this Software or any additional downloadable software in any way or form."
So while you own the physical media, you do not own the copy of the software on it, or any copies you install. If the company that sold the software finds out you violated the EULA, they can revoke your right to use the software, at which point you're free to use the CD as a coaster.
This is much different than owning a copy -- a musician can't revoke your right to listen to your CDs, an author can't revoke your right to read your books, a movie studio can't revoke your right to play your videos.
If you buy a copyrighted work absent any licence, a book, say, you can do whatever you want with that particular copy. That is because you own that particular instance of the copyrighted work. You can loan it out, sell it, scribble all over it, insert or remove pages, whatever. This is because copyright doesn't regulate use.
Who said anything about arresting anyone?
As for the other examples: yes. I think if a Congressman admits to believing a law they are voting for is unconsitional, there should be some sort of recorse for removing them from office.
I think where the confusion is lying here is that I'm talking about people who admit to voting for something unconstitional. This has actually happened before. Why would an elected official who has taken a sworn oath of office to protect the Constition, ignore it and then talk about it with others?
Obviously, I'm against removing Congressman and President who sign or vote for something that is later ruled unconstitional. We all have our differences of opinion when it comes to what the Constitions says. However, I'm talking about the case where someone is knowingly going against their own interpretation. It just seems like they are completely ignoring the oath that they took, don't you think?
And as for Supreme Court justices, your parallel doesn't make any sense in the context of what I'm saying.
Forget the whales - save the babies.
Another example quoted was purchasing concert tickets. The terms of the concert may be no cameras, and it is enforcable. You agree to behave after the rules of the concert by being there, even though you didn't agree to those terms before purchasing the ticket.
Back starting about the 1920s, motion picture theater owners sought state laws to protect their abilty to sell food and bar patrons from bringing in food from outside, to control unruly patrons and so on. Most states adopted versions that also applied to live theatres, concert halls, and colluseums. Some states even extended these laws to amusement park rides and such. In general, these laws specify two exemptions to normal principle of contracts - you didn't actually sign anything, but you agreed just by buying a ticket & you didn't actually have all the rules quoted at you, let alone presented in writing.
The point is, a concert hall's no cameras policy usually does not rest on normal contract law alone, and so isn't necessarily something a judge should have cited as a contract law precident. It may even be a precident against - An indication that the states need to adopt special laws as they did before if similar clauses in EULAs are to be enforcable.
Who is John Cabal?
The EULA gives two options. I was commenting that one of the options is not valid 99% of the time. If they give me two options, I expect both options to be valid.
About 2 weeks ago, my friend called me while I was in Greenville, SC and told me that he couldn't get a copy of WoW in Dallas, TX and that it was selling out nationwide. He told me that they were yanking WoW from the shelves in fear of impending server trouble. Coincidentally I was in Best Buy at the time and saw 6 copies of WoW sitting right in front of me. Well, being the ambitious, young capitalist that I am, I immediately recognized a market where demand was evident and I decided to meet that demand with supply. So I swiped up all 6 copies up for $50 a piece and put them on the plastic. I get back to my friends house, snap a digital picture of all 5 copies (one was for my friend) and put them separately on eBay. I established that I would start bidding at $70, buyout at $75 because most bids started at $80 and bought out at $85 or $100. I knew this was a short term market with a small window of opportunity for profit. Because once Blizzard got its shat straight the market value of those things would be back down to $50, flat. No risk, though, 30-days, unopened, receipt, cash back. No prob. Well I sold 1 in about 1 hour. And 2 more overnight. I shipped out the 3 simultaneously after ensuring payment and made about 50 bucks in profit after shipping. However, a few days later I got an email (see below) from Ebay informing me that my copies had been removed. Ok, I understand that in-game items for sale on ebay would disjoint the in-game market. So, for the value of gameplay I understadn this ruling. But I'm a free market capitalist who says: "Something is worth as much as someone is willing to pay for it." If I pull a wad of gum from my shoe and you want to give me $500 for it, then that wad of prechewed gum is worth $500, maybe more, depending what your friend eyeing it wants to pay more. I believe that if I have the foresight to purchase a game, do not alter its quality or value, than I should be able to resell that game for whatever price I can garner. If Blizzard shipped too many copies and didn't plan on them overloading their servers, well tough titties Paco, don't take away my right to be an entrepreneur. I used to love this thing called freedom. Remember that shit? It was the bomb. But, this will all get into the, "you didn't by the game you bought a license" discussion and "that license is under certain restrictions". Blah blah blah, if you know anything about intellectual property and the heinous state to which it has plummeted then you know what I'm talking about. However, I just wanted to bring this up because most of the discussion I saw listed was about selling in-game items prohibited in the EULA, not the actual, un-opened game. Below is the email I got from Ebay: To: ***************** From: whyended@ebay.com Subject: VeRO NOTICE: eBay Listing(s) Removed - VeRO Program Date: Tue, 11 Jan 2005 16:45:26 PST **PLEASE READ THIS IMPORTANT EMAIL REGARDING YOUR LISTING(S)** We would like to let you know that we removed your listing: 8160606633 WoW *SEALED* World of Warcraft - email or ship FAST! because the intellectual property rights owner notified us, under penalty of perjury, that your listing or the item itself infringes their copyright, trademark, or other rights. We have credited any associated fees to your account. We have also notified the bidders that the listing(s) was removed, and that they are not obligated to complete the transaction. If you relist this or any other similar items on eBay, your account likely will be suspended. If you believe your listing was ended in error, or have questions regarding the removal of this listing, please contact the intellectual property rights owner directly at: ESA - Entertainment Software Association esa@theesa.com eBay is available to answer questions, but since it is the rights owner that requested the removal of your listing(s), we encourage you to contact them first. For more information on eBay's cooperation with rights owners through the VeRO Program, and a list of rights owners that have created About Me pages, please visit: ht
Read the GPL more carefully. You can make any changes to the source you want. Actually, copyright law allows you to change the source if you want.
It is when you distribute the changed binaries that the GPL states you must also distrubute the new source, if requested, to anyone who has the new binaries.
If I want, I can download netcat and make changes to the source. I have not violated copyright or GPL. I can give the modified binary to 5 of my friends, now I have violated copyright so I must accept the conditions of the GPL (which gives me the right to distribute as long as I follow the other conditions). However, I am only required to give the source to those 5 friends. I am not required to give the source to the world. If one of my friends doesn't ask me for the source and gives the program to someone else who does ask for the source, my friend has violated the GPL, not me. Of course, he can rectify the situation by asking me for the source and then giving it to his friend.
--Demonspawn
There's a difference between you being given unrestricted freedom to do whatever the hell you like, and you getting something you didn't have before. As we've all said before, the GPL gives you rights. You didn't have those rights before you agreed to the GPL. You may be able to find licenses that give you more rights, but that's irrelevent.
An EULA takes rights away. You started with fair use rights. If you agreed to an EULA, you agreed to waive those rights.
If you want to continue to argue this, please, show us a right the GPL takes away - and include the legal cite that says you had the right to it in the first place. Not "a license that gives you an additional right for a specific software product", a simple legal cite that says "By default, you have the right to X a copyrighted work, without agreeing to anything", and a place in the GPL where it says "You can't do X".
You are not alone. This is not normal. None of this is normal.
I can understand Blizzard's desire to protect it's content. If it becomes firmly established that the electronic content of a game has a monetary value the IRS will be all over it like smell on a skunk, or a slashdotter on a MicroSoft thread.
....Do you own one or more epic mounts....what is the net worth of all your gear....how many dependent guildies do you have?....
Modern artist take great care to make sure that the value of their pieces can't be established firmly; because as soon as the grey area has been absolved the government steps in and taxes you for the whole lot of it. That's why the only rich artist is a dead artist.
Who knows what would happenen to MMORPGs if the same thing happened to them. I don't even want to think about what my tax forms would look like:
So basicly, no one has any idea if EULAs are enforcable or not. Not even lawers. Isn't law fun?
>Ah, but if you look at most EULAs, they contain
>something like the following language: "This
>Software is licensed, not sold.
So, the EULA obviously does not cover the sale since it is not something you agree upon when you buy it.
> If the company that sold the software finds out
>you violated the EULA, they can revoke your right
>to use the software,
There is no such right for them to grant to start with. There is nothing forbiding the use of software (or anytnhing else related to copyright). Similary, a car maker can't forbid me from using a car I buy (or claim I did not buy it, only licens it when I get home and find a piece of paper stating so in the trunk. Since you are claiming and appearantly understand this very think based on the following sections you write, I don't see why you are making this claim though.
I'm not talking about my perspective, I'm talking about the perspective of the person who is doing the passing/signing. Why do you think the oath is even a requirement in the constition? Everyone who takes the oath should be looking out for the Constition, not just thinking "Well, I think this is unconstitional, but I'll ignore my oath and hope that it gets by the SC."
Forget the whales - save the babies.
You say this like it is a bad thing.
In fact, the biggest source of complaint from MMO game players is the ill-thought out nerf.
If game companies had a financial disincentive for poorly conceived nerfage, perhaps the user bases wouldn't feel so screwed.
This is a basic misunderstanding. The GPL gives you rights in exchange for your agreement to follow certain conditions. Otherwise the GPL would be pointless; why not just put it in the public domain? That would grant the same rights without any conditions. If the GPL is a grant of rights without imposing any conditions, then why would anyone try to "enforce" the GPL?
To show that this is the case, consider what happens if you do not follow those conditions: You lose the rights granted to you. Failure to comply with the conditions imposed by the license can result in you losing the rights granted by the license. This shows that the GPL is a grant of rights in exchange for agreement to conditions, not a free grant of rights.
Slashdot - News for Nerds, Stuff that Matters, in ISO-8859-1 Has just realised that beta makes this signature redundant
What if the game maker designed the game to be enjoyable for all based specifically on the rules they set up in the EULA?
When game players decide to break those rules, they threaten the enjoyment of all the others playing as well as the commercial success of the game.
Why would someone want to play a game when the rules are not being followed? In absolute terms, without any rules there is no game.
If you think that bending the rules is OK, then you should also be OK with the game developer deciding to bend the rules on you in ways that even the best hacker could not. Some people have no problem doing bad stuff to others, but when its done to them that's a big problem. (Hypocrisy?)
All you've done by breaking the rules is move the game from a virtual world to the real one, the problem is your no longer toying with things that don't matter anymore, real people get hurt by your actions. It's sad that most who do this believe that they aren't hurting anyone. There is finacial risk for those who build products.
Please think.
A couple of points occur to a layman such as me, though, which make me wonder whether many of the arguments over these EULAs are moot.
Firstly, the argument over whether opening a shrink-wrap package means you're deemed to have accepted the licence conditions, while important, isn't the real issue here. If the licence were printed obviously and visibly under the shrink-wrap, then things would be a little clearer. Similarly, if the packaging contained a clear web link to the conditions, or if people had the terms explained to them by the salesperson before sale, then you'd have no legal excuse -- and still people would buy them (and complain!). So the problem of licences hidden inside packaging is just a side issue, albeit an important one.
And secondly, AIUI, a contract cannot take away your statutory rights. For example, here in the UK, goods you buy must be properly described, of saleable quality and fit for purpose, even if your (implied or express) contract with the vendor states otherwise. (In fact, it's a criminal offence to ask consumers to give up these rights.) Things will differ slightly in other jurisdictions, but I think most readers will be in a broadly similar situation.
So if you have a legal right to reverse engineer software for interoperability purposes, then you still have that right even if a clause in an EULA claims otherwise.
To take another example, I don't know if the First Sale Doctrine counts as a statutory right for this purpose, but if it does, then it doesn't matter whether the EULA is valid, or whether you're deemed to have accepted it, because a clause preventing resale wouldn't be enforceable anyway.
Is that right?
Ceterum censeo subscriptionem esse delendam.
You forgot "Profit" in that list
You asked for it:
4. Watch as comments are moderated up to Score:4, the default "Highlight Threshold" at which Slashdot puts them on the "static page", which is visible to Google and to Anonymous Coward.
5. Write a software product, put a restrictive EULA around it, and make it available for sale on a web site.
6. Pimp your site in your Homepage and Sig, enticing users to click through and giving the site higher PageRank in Google.
7. With more hits, watch sales increase at your site.
8. PROFIT!
By right of law you now have the right to *use* the product.
Oh really? I see two separate offer-acceptance-consideration sequences here. The first one occurs when you walk in the store and pay for a box, a manual, and a shiny disc. However, the "goods" do not necessarily include the right to use the software, as the software may be encrypted on the disc, and in order to lawfully decrypt someone else's copyrighted work in the United States, you need a second contract.
1. Offer: You accept to use this product under even more limited ciscumstances than those given to you by law
U.S. copyright law, 17 USC 1201, gives the copyright owner the right to control use of a product after the sale. I could see how a publisher of a computer program could argue that the installer qualifies as "a technological measure that effectively controls access to a work protected under this title" because the installer, "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the" computer program being installed. The copyright owner is willing to grant such authority only on the condition that you accept the second contract, the EULA.
2. Accpetance: Well, if you don't accept then your product doesn't work, you can't return it and are left with something unusable.
Except a California court ruled that you can return it.
3. Consideration: For agreeing to the terms and conditions what do you receive? NOTHING!
You receive the right to use the software, which you didn't have before under the DMCA.
Except that this is specifically allowed by copyright law! Copying into RAM is permitted for the purposes of executing the software. In fact, installation onto the harddrive is permitted if that's what you need to do to use it.
Only if the software is not encrypted on the installation media. If it is encrypted, you may need a separate license under the DMCA to encrypt the software.
So, you can thank Clinton for the DMCA.
President Clinton could not have blocked the DMCA from becoming law. Both houses of Congress passed the DMCA by voice vote, which needs at least 81 percent assent in each house, as twenty percent can force a roll-call vote. It takes only 67 percent assent to override a Presidential veto.
What do I get in exchange for clicking "I agree" to the EULA? Nothing.
What you get in exchange for the rights you give up in the second contract (the EULA) is the right to decrypt the computer program, which is stored encrypted on the installation CD. This has been true since October 1998, when Congress passed the Digital Millennium Copyright Act by a margin well over what any Presidential veto could have stopped.
Ah, but if you look at most EULAs, they contain something like the following language: "This Software is licensed, not sold.
Which does not apply unless you choose to accept the EULA.
If you deline that contract offer then under US law you DO own that particular copy. If you deline that contract offer then under US law it is perfectly legal for you to install it. If you deline that contract offer then under US law it is perfectly legal for you to run it. If you deline that contract offer then under US law it is perfectly legal for you to decompile, or disassemble it. If you deline that contract offer then under US law then they have absolutely no right to revoke anything.
This is because copyright doesn't regulate use.
Exactly. You do not NEED any lincence to install and run software. You can simply decline their contract offer (the so called EULA) and go on your merry way.
The original Slashdot story was not about EULA's at all. It said that service contracts for the use of someone else's servers is an enforcable contract. And while a handful of EULA's happen to also be service contracts, that does not make EULA's themselves valid. And you are also always free to decline that combined EULA/service-contract. You are then free to anything you like with that software (other than copyright infringment) without making use of thier service. Of course that makes thinks like MMORPG mostly useless unless you come up with your own server to provide that service for you.
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Since [with a proprietary program's EULA] there is nothing that prevent you from using the program to start with, what is the point then?
Yes, there is something that prevents you from using a proprietary computer program. When you buy a box in a store, you're buying a shiny disc that contains a block of encrypted data. The publisher is willing to decrypt this data, turning it into an executable computer program, in exchange for your acceptance of a restrictive EULA. Since October 1998, you are not permitted to decrypt the data in the United States without permission of the copyright owner.
You do not NEED any lincence to install and run software.
You must live outside the United States because in the United States, a fellow needs the copyright owner's permission under the DMCA to decrypt an installer package.
Then EULA's take away your rights while not giving anything in exchange (I do not consider the right to use the software a fair exchange because you already purchased the right for that at the store when you bought the software).
Not necessarily. Please consider an analogy to DVD Video. I live in DVD Region 1, specifically in the United States. I import a CSS encrypted DVD Video disc from DVD Region 2. I may be the owner of the disc and therefore "the owner of a copy" under U.S. copyright law, but do I have a right to decrypt the audiovisual work contained on that disc and watch it? Not since October 1998. Likewise, I'm probably not allowed to decrypt the encrypted installer package of a copyrighted computer program without the publisher's consent.
Actually, a typical EULA will claim that you must agree to it to even use the program to start with. The GPL is something you don't have to care or agree to at all to use a program. It is something you must agree to only in case you want to do additional things with the program. Huge difference to me.
>The L in both cases is for "LICENSE" which is
>the type of agreement/contract you enter into by
>clicking on the "I agree" button.
Ehh, a license is typically a permision to do/use something you would otherwise normally not be allowed to do. SInce using and running a computer program is not something forbidden, you really don't need a license for it. To redistribute someone elses work, and create derivtae works of it, you DO need permision or a licnese (for example the GPL). So the GPL is there in case you need those additional rights. The EULA is really there for no particular reason (other than the creator wanting to restrict you and believe you need it).
The GPL gives you rights in exchange for your agreement to follow certain conditions
Incorrect. It is a pure licence grant in the absence of any agreement.
The part which is confusing you is that it places restrictions on what rights it grants. You are misreading this as placing restrictions on you, restrictions which you suggest must be accepted. No. The GPL grants a licence to distribute certain classes of derivative works. (1)It says you may distribute a derivative work consisting of a valid GPL licence + a compiled binary + full source code. (2)It says you may distribute a derivative work consisting of a valid GPL licence + a compiled binary + a valid offer for the source code. (3)It says you may distribute a derivative work consisting of a valid GPL licence + an unmodified compiled binary + a sourse code offer you received with that binary.
Note that all three are positive grant of licence to make and dirtibute derivative works.
You do not need to accept anything. The GPL grants you the rights to distribute those kinds of derivative works and only those kinds of derivative works. Copyright law restricts the distributing of anything else, whether you accept the GPL or not.
why not just put it in the public domain? That would grant the same rights
No, puting it in the public domain would be a waiver of ALL rights. Just because I restrictions on what I give you - I give you my house and my red car but NOT my blue car - does not mean I am placing restrictions on you. It does not mean you have to agree to anything. I simply chose not to give my blue car away too.
Then we can look at EULAs. They are in fact rarely licence you anything. The only exception I can think of would be certain business licence allowing you to install 5 or 15 or 100 copies or whatever.
Copyright restricts the production and distribution of new copies, and public performance. If a so-called EULA does not include one or more of those right (and they almost never do) then it is not licencing you anything.
In fact EULAs offer you nothing you need. Under US law EU law, and generally the rest of the world, you do not need a licence to install and run software. You no more need a licence to "use" software than you need a licence to read a book. EULAs also generally offer you nothing at all.
So while the "Licence" part of "EULA" is generally wrong, the "Agreement" part is correct. An EULA is a contract offer. If you do not choose to agree to that contract then it does not exist. Of course if you decline that contract you recive nothing it offers. But as I said it offers nothing you need and generally nothing you want.
EULAs almost exclusively consist of saying you can do things you already have the right to do, and restrictions were you promise not to do things you otherwise had the right to do. If you don't accept then you still have the rights you already had, and none of the new restrictions apply.
The original article wasn't really about EULA's. It was about service contracts. Yeah, if you want an online service offered by a company you may need to agree to a contract to get it. But just because they slap the title "EULA" on a valid service contract does not somehow make other EULAs valid. And even in the case of an online service contract EULA you can still deline the EULA and use the software. You're just limited to using that software without the use of their service. You can either use it offline, or you can make your own server to provide that service yourself.
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Every time I log into my debian machine it says the following,
/usr/share/doc/*/copyright.
"The programs included with the Debian GNU/Linux system are free software; the exact distribution terms for each program are described in the
individual files in
Debian GNU/Linux comes with ABSOLUTELY NO WARRANTY, to the extent permitted by applicable law."
Its not at all uncommon with the warning in small type that comes up when I launch certian applications in Windows/Mac in the splash screen. If I violate the terms of the GPL don't they enforce it the same way companies enforce EULA's? Its the same thing really.
No, the courts have NOT "already decided this". In fact the courts in different districts are conflicted and rarely address the fundamental issue.
It is also extremely decetive to point to a valid service contract that happens to have the letters "EULA" slapped at the top and claim that means EULAs are themselves valid. Someone is perfectly free to decline a service contract and not use the service. It is then absolutely NOT copyright infringment to install and use the software or to reverse engineer or any other non-copyright-infringing activity. There is no copyright basis for EULAs. You do not need a licence to install and use the software.
What corts are conflicted over is whether these contract offers can be binding merely by buying the box.
If the ultimate answer to that is "no" then EULAs are not binding, you can always decline them and still use the software. Of course that does not include anything like server services they may offer. If you want to decline then you must either somehow use the software without server service at all, or come up with your own server to provide the service. Of course that is a non-issue for normal software that doesn't try to use online service.
And if the ultimate answer is "yes EULAs are binding", then such a ruling is in no way limited to software. I can slap any EULA I like on a tomato and it is just as binding. I dunno about you, but I think any ruling that way is absolutely insane.
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Ignoring the various side busnisses that have cropped up and the issues they bring most various arguments come from theses two sides.
The anti-outside selling has a problem because it brings an outside influence into the game. The best example I have seen of why this is wrong is this. Say you are playing a game of Monopoly with a bunch of friends, and park place broadway are owned by different people. On of the person offers the other person $5 in real world currency for the other place. While not agaist the rules it does change the game. Does it make a difference if they do the real world money exchange in private or in public?
The pro side says that they are just tring to make it easier for the casual player to compete in the game. Since the casual player has less time in the game and has problem getting all the better items they should be allowed to spend real world money in place of the time spent in-game
>For more information look into the bnetd court
>case.
If I am not mistaken the decision was appealed, was it not? So it is not really decided yet and one can't draw any conclusions at all.
The GPL only covers distribution, not use. By definition, then, it cannot possibly be an End User License Agreement.
And it works just fine. You select one or more items, place them in escrow at a space station, and select a buyer (that can be either a specific player; a specific corporation; or anyone), and decide a price.
You can have a look at the items that are placed in escrow so you know that you get what you pay for, but you have to pay to get the items. The selling player then gets the money.
It's pretty common with escrow scams, though. But they target players who don't check the items they "buy" via escrow before they click the buy button, so this is an actual part of the game, just like the piracy in some systems. It's a rough world in EVE.
Leveling up builds character.
Now, where I think current EULAs might get into trouble is that despite what the text of the EULA may say, you cannot in practice return opened software if you find the EULA unacceptable.
What was that about not being able to return the software again?
So you had a right to use say "Game XYZ" before you purchased it? I don't see how the EULA takes away any more rights than the GPL. They are both giving something and taking something. I can modify the source if it is a GPL licensed item, however I cannot do something other than what the GPL says or I am in breach. The same goes for an EULA.
LRC, the best-read libertarian site on the web
But Softman wasn't about an end user, it was about a distributor unbundling Adobe software collections and reselling them. In that case, I believe First Sale doctrine took precedence over the EULA.
It's not offtopic, dumbass. It's orthogonal.
That's what I said. The EULA is not legally binding because federal law overrides their stupid made-up rules trhat no-one gets a chance to read. EULAs are redundant and useless, which TFA says while trying to pretend it's saying the opposite.
Changa hates change.