Who Owns Software?

SeeSp0tRun writes to remind us of Blizzard's lawsuit against MDY Industries over the Glider cheat. It seems that Blizzard is pushing it even further. They're trying out the legal theory that a software creator retains complete control over how a program is used, meaning that anyone who uses it in a different way could be found guilty of copyright infringement, at $750 a pop. The EFF and Public Knowledge are among the organizations trying to assure that the court doesn't set a really bad precedent here.

Comments

Obvious answer!

[neokushan]

I do the second uTorrent is finished with it.

Re:Obvious answer!

[neokushan]

In case anyone's wondering, I'm being extremely sarcastic here.
However, my absurdly ridiculous response is only half as ridiculous as what Blizzard is trying to say here.

Re:Obvious answer!

[PopeRatzo]

I agree with the GGP, too. I'm so sick of the games software vendors are playing with licenses, EULAs, phoning home and other DRM, I find it much easier and more efficient to just steal the stuff.

There are a surprising number of cases in my computing life where I've bought a legit license to software, but used the cracked version just because it doesn't fuck with me. In most cases, I don't have anything against the developer, so I don't want to steal from them, but I do not want to be fucked with and pay hundreds of dollars for the privilege.

Since I'm well aware that I'm not exceptional, I have to assume other people do the same thing.

Re:Obvious answer!

[ColdWetDog]

I'll just join the chorus - it is an issue with many vendors - not only with games. I tried to do a cross platform switch with Adobe Premiere Pro. I've had Premiere since 1.0 and have upgraded three times. They wanted every single serial number since, oh 2003 or so.

After rummaging around, I managed to find the two previous upgrades, but not the original one. They wouldn't do it.

So now I use Final Cut.

You've just screwed yourself out of future upgrade money.

Strong work, Adobe.

Re:Obvious answer!

[pressman]

Premiere is really not a good example as:

A) It's a piece of garbage compared to Final Cut
B) Final Cut Express killed it with better features at a lower price point
C) Adobe screwed themselves over in the Mac market by killing it and the bringing it back when Apple went to Intel
D) Everyone was switching to Final Cut Pro anyway back in 2002 because even though it cost more, you could actually efficiently cut a feature length film in it
E) Final Cut Pro (v3 on) actually imported and dealt with Adobe file formats better than Premiere did!

Adobe would have been better off rolling the timeline editing aspects of Premiere into AfterEffects to create a true competitor to the Discreet (now Autodesk) line of applications rather than go toe to toe with Apple and Avid in straight up non-linear digital video editing.

For my editing students who insist on working in a Windows world, I urge them to learn Avid over Premiere as Avid is still the industry heavyweight on both platforms in Hollywood and a far more robust editing platform to boot.

Re:Obvious answer!

[PopeRatzo]

Yes, lorenzo, Steam is very nice. Thanks to them, I seldom have to resort to cracks and keygens for games any more. Their prices are reasonable, and their portal application is not obnoxious. More important, I can exit it completely and it doesn't leave any sticky processes hanging around my system, which is important, because I use my system for important work as well as occasional fun'n'games.

Re:Obvious answer!

[Knara]

I don't really understand their motivation. WoW is the uncontested king of MMOs and there's no one in sight that can possibly undo their massive, massive lead in terms of subscribers and active accounts.

The only thing that can kill Blizzard's advantage is Blizzard itself, either by slowly alienating their player base, or releasing uninspired, rehashed content. My bet is on a mixture of both.

Re:Obvious answer!

[ryzvonusef]

I remember reading Harry Potter, where the goblin claim that all the items are the actually the property of the creator, that the wizards only rent for a lifetime, not buy it, and that wizards were actually stealing the items by not returning to the goblins after death, i read about it and thought "what a stupid idea, JK! in no world would THAT ever happen!" Now however, I have to chew my words, cause this is happening in my own world (BTW, does that make the software developers goblins ;-)

Re:Obvious answer!

[kalirion]

I'd rather have Steam ask for permission than be forced to root around for the game disc. That's my favorite thing about Steam - not having to have the CD/DVD in the drive.

The thing that annoys me the most is that recently it started ignoring the "Pause Updating" option. I wanna play CS:S, so I pause the TF2 update. As soon as I launch CS:S Steam stealthily unpauses the update, causing ping times of 1000+ for me (crappy little DSL connection). And I say "stealthily" because when I alt-tab out, it still says the updating is "paused" but when I unpause it it somehow jumped ahead by a few percentage points to completion. I have to unpause and then pause again and THEN I can go back to the game and actually play....

Plus the ads are annoying (pop-ups? seriously?), and the games are priced at RETAIL prices. Hmm, I could spend the same amount of money and get the boxed version with manual at a store, or waste quite a few hours downloading a multi-gig title....

How it's used?

[CannonballHead]

They want to keep the rights to how it is used? Hm. Does that mean they are responsible for how it is used, then? If someone uses it "wrong" and "hurts" me, does that mean I can sue the developer, since he is the one in charge of how it is used?

Re:How it's used?

[fahrbot-bot]

If someone uses it "wrong" and "hurts" me, does that mean I can sue the developer, since he is the one in charge of how it is used?

More to the point. If someone uses it "right" and hurts someone...

Re:How it's used?

[Anonymous Coward]

If we're to pay them for using it in ways we're not supposed to, then can we get payed every time their software does not work exactly the way its supposed to and crashes or messes up my system?

Re:How it's used?

[Kjella]

Any restrictions would be contractual obligations, which have nothing to do with legal obligations. The contract doesn't regulate illegal use since it's per definition already illegal. Besides, what kind of logic is that? The government dictates a maximum speed limit. So if I crash while under the speed limit, can I sue the government because they're responsible for how I drive?

Re:How it's used?

[Anonymous Coward]

Am I still allowed to spin the CD on my finger when I'm bored?

Re:How it's used?

[CannonballHead]

But this would be more akin to the government claiming the right to tell you exactly how you can (and, by implication, how you can't) drive in your car, anywhere, for any purpose.

So if someone drives the way they are told they can, and hits me, does this mean the government is responsible? They claimed the right to be the sole authority of how people can drive...

Basically, my point is that the right to authorize use is similar to responsibility for how it is used under that authorization.

Re:How it's used?

[sm62704]

Easy solution: You sell the software and I'll use it any way I damned well please, just as copyright law allows. If Blizzard gets away with this Congress needs to change copyright law.

The only problem with the changing copyright law thing is that the corporate controlled Congress will change it the wrong fucking way like they almost always do.

How I would change copyright:

• Book, music, movie, and image copyrights: 20 years, ten year extension
  
• Software copyrights: Five years, must include the source code, five year extension on old parts of the work
  
• Out of print works go directly into the public domain (none of this Disney bullshit of taking a movie off the market for seven years)
  
• Any private, noncommercial use is statutorily considered non-infringing, including distribution
  
• No copyright can be held by a corporation. All copyrights are held by the works author or authors
  
• Anyone caught abusing copyright like the record companies do and like Blizzard is doing here loses all copyrights they hold, and may not hold copyright for another five years
  
• No work is copyrighted unless application is filed along with two copies in the Library of Congress
  
• Cowboy Neal is in the public domain

Re:How it's used?

[Sylver Dragon]

I like your plan, though I would change the lengths a bit.
My idea on how to have stuff fall into the public domain, while appeasing the Disney's of the world:

The initial copyright lasts 10 years and costs $100.
The next 5 years costs $1,000, the next 5 years $100,000, and the next 5 costs $10,000,000 and so on. Every extension costs 100x more than the last. If a product is really worth it to a company to keep in copyright, they can keep it for as long as they like, it's just going to reach a point of being too expensive to be practical.

I'm sure the numbers would be argued over, and a compromise could be reached; but the goal is to make companies do a real cost-benefit analysis on a copyright, rather pooling their resources to buy a few congressmen every 10 years.

Re:How it's used?

[CRCulver]

Preserving copyright but trimming it down just won't work. Young people today are used to getting the music, films or (in some cases, like chess resources or language courses) books at no cost through Bittorrent or other Internet resources. This is becoming normal in every country where children grow up with broadband. If you preserve the copyright system, you're going to have a law that you can't enforce until you want to consider the average man a criminal.

Some countries are already adjusting to new realities, with places like Hong Kong enjoying thriving entertainment industries in spite of the fact no one buys legitimate media. In Europe, the best films of recent decades and a great deal of art music were realized thanks to support from state arts ministries. The sooner the U.S. gets with the programme, the better.

Re:How it's used?

[spicate]

No work is copyrighted unless application is filed along with two copies in the Library of Congress This is ridiculous. The burden on newspapers and magazines - especially small independents - would be immense. I want my website content to be copy-righted. Also, imagine the storage demands...

Re:How it's used?

[Beardo the Bearded]

That's normal.

When you create a work, you also maintain and keep the moral rights to the work. That basically means that another person can't modify the work.

You can not assign the moral rights to another person. You can waive them or enforce them. If you don't act to enforce your rights, then you give them up by your actions.

There's an example where a sculptor created a flock of geese in a mall for decoration. For one Christmas season, the mall tied ribbons around the necks of the geese. The artist sued the mall and won, because it violated his moral rights to the work.

IANAL. I just know the difference between copyrights, trademarks, patents, industrial design, and trade secrets.

Re:How it's used?

[Oligonicella]

You would deny me the right to sell my copyright why?

You would open me up to theft of my material until I personally could publish why?

Re:How it's used?

[gstoddart]

Easy solution: You sell the software and I'll use it any way I damned well please, just as copyright law allows. If Blizzard gets away with this Congress needs to change copyright law.

Sadly, if Blizzard gets their way, then the recording and movie industries will want their way.

Something to the effect that playing a CD on a second CD player after I have already played it on the first CD player is illegal. Or, they'll get it in writing that there is no such thing as fair use, and the act of ripping a legally purchased CD to MP3s is now a Class A Felony.

Absolutely nothing about how governments have handled copyright over the last bunch of years tells me that they wouldn't make the situation even worse. The people who pay the bills have the deck stacked in their favor.

Thee and me? We don't count because we don't contribute enough to their campaigns -- and, they contribute to everyone's campaign.

Cheers

Re:How it's used?

[sm62704]

I don't like the cost factor. A pauper should be able to copyright a work. A hundred bucks is quite a lot for the average (or should I say "median") American, but it's chumpo change to a rich man or a corporation.

Re:How it's used?

[Dancindan84]

The solution is to do what they have been doing in the past: banning players for violating their Terms of Use.

4. Limitations on Your Use of the Service.

1. A. Only Blizzard or its licensees have the right to host the Game. You may not host or provide matchmaking services for the Game, or intercept, emulate or redirect the proprietary communication protocols used by Blizzard in connection with the Program, regardless of the method used to do so. Such prohibited methods may include, but are not limited to, protocol emulation, reverse engineering, modifying the Program, adding unauthorized components to the Program, or using a packet sniffer while the Program is running.
2. B. You agree that you will not (i) modify or cause to be modified any files that are a part of the Program or the Service; (ii) create or use cheats, bots, "mods", and/or hacks, or any other third-party software designed to modify the World of Warcraft experience; or (iii) use any third-party software that intercepts, "mines", or otherwise collects information from or through the Program or the Service. Notwithstanding the foregoing, you may update the Program with authorized patches and updates distributed by Blizzard, and Blizzard may, at its sole and absolute discretion, allow the use of certain third party user interfaces.

People using this program are violating the ToU that they agreed to when they signed up for blizzard's online service. As such:

7. Blizzard's Absolute Right to Suspend, Terminate and/or Delete the Account. BLIZZARD MAY SUSPEND, TERMINATE, MODIFY, OR DELETE THE ACCOUNT AT ANY TIME WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE. For purposes of explanation and not limitation, most account suspensions, terminations and/or deletions are the result of violations of this Terms of Use or the EULA. Obviously this is a pain for them as they have to develop methods of determining that the user is in violation, so they're trying to go after the company that developed the software. I think their case is shaky at best and I don't agree with them, but I understand why they're trying to do it.

Re:How it's used?

[cHALiTO]

You've both got it all wrong. The problem is not the government saying how we can drive our own cars. That is analogue to the government telling how we can use copyrighted stuff, which it does (i.e.: DON'T REDISTRIBUTE IT WITHOUT PERMISSION).

The problem here is that blizzard sells you the product, *then* wants to tell you how to use it.

A more fitting analogy would be if Ford sold you a car, then told you "but you can't use it on highways, interstates or parking lots, and you must park it in a covered garage", which is BS, 'cause once you bought it it's YOUR car, and you can do whatever you want with it, as long as it doesn't break the law (over which Ford isn't supposed to have any say...).

The worst they can do is refuse to service you or void your warranty if it was explicitly specified before you bought the car, but they can't tell you what to do with your own stuff.

Now, if they're Renting you a car, or leasing it, that's another thing altogether, but then they should clearly advertise it as a rent, and not as a product you buy out of the shelf.

And even when renting, that implies a whole lot of responsibilities from the vendor..

This is all fucked up big time.

Re:How it's used?

[drinkypoo]

When you create a work, you also maintain and keep the moral rights to the work. That basically means that another person can't modify the work.

It really doesn't mean that at all, sorry. First Sale law says that once you buy something you can do whatever you want to it. That's basically the biggest conflict with IP law... which is, er, why we have IP law - specifically to force you to obey certain restrictions on use.

When you buy a piece of furniture, it can potentially be a copyrighted design. You actually don't have the right to reproduce it; if you want a similar product, you are free to design one from a clean room implementation provided that it is not also covered by a patent. You are not permitted to make use of a patented design for your own use. Practically speaking this is not much of a burden on end users. The copyright police are not going to come to your door to find out if you're knocking off counterfeit La-Z-Boys unless you are building a furniture empire on their designs.

There's an example where a sculptor created a flock of geese in a mall for decoration. For one Christmas season, the mall tied ribbons around the necks of the geese. The artist sued the mall and won, because it violated his moral rights to the work.

That's a public exhibition, in a case in which the work was designed for the purpose. It is, arguably, different - though barring a contract specifying that the work shall not be tampered with, IMO he still should have been laughed out of court.

But the point is, creating a work doesn't automatically entitle you to protection, or the art form of collage would have disappeared entirely by now as all of its practitioners would be imprisoned.

Re:How it's used?

[VeNoM0619]

Sorry, maybe I wasn't explaining well enough. The reason Blizzard is pushing this is because of bots within their games. Their software was being altered/reverse engineered in some way to allow it to abuse their system/service. Now, they can keep banning players, but that can never stop someone from proxying, spoofing, etc.

To put it in a simpler analogy. It's like they keep getting DDOSed (abuse of service), but they can't do anything about it. How would you like to be a company that has someone constantly trying to break your system (in this case finally succeeding). Don't say you can prevent everything, there's a reason why there's private networks.

What's the best solution? Sue anyone who uses bots? The only way to stop bad people online seems to be through physical/legal actions right? What other solutions can you think of?

All RPG online games are ruined by cheats/bots (name one that is popular and has no cheating/botting if you disagree), how can one possibly defend against it?

I'm not in favor of this bill especially calling it copyright infringement, but feel there should be something similar (but heavily modified and reviewed)

Re:How it's used?

[R2.0]

"You would deny me the right to sell my copyright why?

You would open me up to theft of my material until I personally could publish why?"

No. You could not "sell" what is a statutory right. You could, however, LICENSE it. Authors do this all the time.

I don't necessarily agree with the GP about individual ownership - it totally blows the concept of "work for hire" out of the water. But the time limits for corporations are definitely out of hand - if anything, they should be LESS than those for an individual.

Re:How it's used?

[Aram Fingal]

...But all modern cars have embedded computer systems which help run components of the vehicle. Some of them must contain software which is subject to copyright and I wouldn't be surprised if there is a EULA among all that paperwork about the warranty. That's something to watch out for next time you buy a car.

Re:How it's used?

[bigstrat2003]

The sooner the U.S. gets with the programme...

...state arts ministries... NEVER. The second the government sponsors our entertainment, they can (due to their rights as the source of funding) dictate what entertainment can and can't be made. Fuck. That. Shit.

Re:How it's used?

[Fujisawa Sensei]

If someone uses it "wrong" and "hurts" me, does that mean I can sue the developer, since he is the one in charge of how it is used?

More to the point. If someone uses it "right" and hurts someone...

How about suing the developer for negligence by not using due diligence in the correct use of the software?

Re:How it's used?

[sm62704]

recording companies actually sell you licenses to listen to the songs on a CD

If there's a license, then where's my copy of the license? When did I sign a license agreement to play my CD?

I signed no agreement and clicked through no EULA. There is no license! With software, the license is debatable; I've been shown where under some circumstances EULAs can be enforceable (although I still doubt it), but when you buy a music CD you own the CD and are free to do anything you wish with it except distribute copies of it.

Downloaded tracks are another matter entirely. When you "buy" from iTunes or any other online "store" you do indeed click an agreement. Rent DRM-infested, lossy music from iTunes instead of buying a CD? Just a bad decicion. Once you have the physical CD you can legally do as you damned well please with it (save distributing copies), including making MP3s for your iPod and copies of it for your car.

Don't swallow the corporate bullshit. You still have a few rights, at least don't fight against them.

Re:How it's used?

[Tom]

How I would change copyright: What I learned about lawyers:

Before your change is even signed into law, every major copyright litigation firm will have a thick binder with all the loopholes, possible exploits and workarounds, and every conceivable trick to abuse it sitting in their library.

In some respects, lawyers are very much like hackers.

Re:How it's used?

[Black Art]

It is not a contract if one side can change the terms at a whim. With a non-free software license, they can change the terms at any time. Too many people try and claim that such things are covered by contracts when the terms do not resemble anything like a negotiated contract.

Now they are saying that beyond just the right to use the product, they can tell you how and where you can use the product. They keep tightening the screws on the users until something breaks.

The industry wants software treated like property when the terms favours them and a license when it favours them. You can't have it both ways.

Such actions by companies only encourages unauthorized copying. "If you don't respect me, I won't respect you" works in the software world just as much as everywhere else.

Does this mean

[fredrated]

that if I open a paint can with a screwdriver, the screwdriver manufacturer can sue me?

Re:Does this mean

[Klaus_1250]

Yep, and depending on:

• the object you paint
• the location of the object you paint
• whether on not you use thinner
• if the paint is used by more than one person and/or one brush
• if the paint is used on more than one object
• if the paint is used on an object that contains (residue of) paint from a competitive paint-manufacturer
• if the paint is used on an object that is for non-personal use
• if the paint is being used by a professional painter and/or if there is any financial compensation involved

the paint manufacturer can sue you as well.

They might even sue you for not closing the lid, leaving the paint in plain sight without any protective measures, lending the paint to a friend, improper use of the paint, etc.

Re:Does this mean

[Zordak]

That's a poor analogy. The screwdriver isn't copyrighted. The manufacturer isn't selling a "license" to the screwdriver or a "copy" of the screwdriver. He's selling you a screwdriver. The screwdriver has intrinsic value as an object. It's a chattel.

In contrast, the physical media the game comes on has little intrinsic value. And to the extent that it does, nobody can complain about you using the install disc as a coaster. The real value is in the copy of the software, and many courts allow parties to contract around copyright (even things like fair use, or not copying things that are in the public domain). Lookup the ProCD case out of the Seventh Circuit. Not everybody agrees with it, but many courts have followed it. The question is tougher when it's a "click-wrap," but many courts will even uphold those. The fact pattern is not unique: A sells a copy of a work to B under a contractual license. B breaches the contract. A sues for copyright infringement, because B only received a copy under the terms of the license. When B breached, his license was invalid, so his rights to the copy are lost. A wins. If it didn't work like this, you could never license anything to anybody except under the existing copyright language. Meaning, for example, that the GPL would not be valid, nor would any software license. So based on precedent, this is not an absurd case.

I'm not saying it has to be that way. Nimmer on Copyright is very critical of ProCD, and some courts have declined to follow it. Nimmer would prevent parties from contracting around some fundamental copyright policy. The problem with that approach is "fundamental policy" is very dependent on who's defining it. So many courts (probably a majority) just don't go there. They uphold the contract, period. If you don't like the result, really the only way to change it is to encourage Congress to pass a version of 17 U.S.C. 301 that expressly preempts some contractual provisions, but leaves the rest undisturbed.

Disclaimer: I don't represent anybody here. This post is not legal advice. Don't rely on it for any reason.

Re:Does this mean

[oahazmatt]

Yep, and depending on:

• the object you paint
• the location of the object you paint
• whether on not you use thinner
• if the paint is used by more than one person and/or one brush
• if the paint is used on more than one object
• if the paint is used on an object that contains (residue of) paint from a competitive paint-manufacturer
• if the paint is used on an object that is for non-personal use
• if the paint is being used by a professional painter and/or if there is any financial compensation involved

the paint manufacturer can sue you as well.

They might even sue you for not closing the lid, leaving the paint in plain sight without any protective measures, lending the paint to a friend, improper use of the paint, etc.

Sounds like my Homeowner's Association.

Good luck with that

[Mr. Underbridge]

I'm no lawyer, but even I recognize that what they're talking about is simply a matter of contract law. You have your EULA, enforce it. It's not a matter of copyright law, no matter how convenient that would make things for them thanks to the insane penalties that accompany it.

Re:Good luck with that

[Hyppy]

The thing is, software companies are trying to use copyright law to enforce their EULAs, since they're quite aware of how flimsy a contract the EULA really is.

Re:Good luck with that

[Z00L00K]

And most EULA:s aren't worth the paper they are written on anyway.

"Use at your own risk" should be sufficient. Remaining wording is just a waste of time.

But I like the following copyright note:

COPYRIGHT
The chat program is in public domain. This is not the GNU public license. If it breaks then you get to
keep both pieces.

Re:Good luck with that

[poetmatt]

Just because you pay for the service doesn't mean you can't use it any way you see fit. You absolutely can.

Blizzard of course, can reject your business and has refund plans set up for that, but it's their responsibility to set and/or enforce whatever guidelines that they come up with; not the player's responsibilities.

WTF

[Uncle Focker]

Here's the scary part: Blizzard also insists that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game. This has to be one of the stupidest attempts at trying to pin someone for copyright infringement ever.

Re:WTF

[Ai Olor-Wile]

Actually, it does that to bypass DRM, which is significantly less innocuous in the face of legislation like the DMCA. This was mentioned the last time Glider came up on Slashdot.

Re:WTF

[Uncle Focker]

I think you misread the quoted section. Blizzard is trying to claim that you are engaging in copyright infringement whenever portions of WoW get copied into RAM. Which is extremely ludicrous because of the fact that these portions of the program have to be copied into RAM to fucking run it. Here's from Public Knowledge:

In this case, Blizzard is saying that any user who runs Glider while playing WoW is infringing Blizzard's copyrights. This is despite the fact that Glider doesn't make any copies of WoW. Instead, Blizzard claims that any time a user runs WoW, the copy of the game (or the portions of it) that are copied into RAM are infringements. Or, at least, they would be, but for the generosity of Blizzard, which grants users a license to make these RAM copies. Utter fucking lunacy.

Re:WTF

[Chris Burke]

Instead, Blizzard claims that any time a user runs WoW, the copy of the game (or the portions of it) that are copied into RAM are infringements. Or, at least, they would be, but for the generosity of Blizzard, which grants users a license to make these RAM copies. Utter fucking lunacy. Indeed, that is lunacy, because copies made as a necessary step in using the program (i.e. copying it from disk to ram) are explicitly exempted from being possible infringements. This isn't even "fair use", it is as the section header says a limitation on the exclusive rights of the copyright holder. They do not have the right to prevent such copies. Therefore they cannot grant permission to do this through their EULA, nor can performing this copy in violation of their EULA be a copyright violation.

They're out on a limb here, and the wind is going to pick up shortly. Any EFF lawyer could argue this down in seconds.

By the way, the next paragraph (b) also directly addresses the notion of selling a legally obtained copy of a copyrighted work. It directly and explicitly puts to pasture the idea that you need a company's (like MSFT's) permission to re-sell a singular copy of their software. At least from the standpoint of copyright.

Retaining control of the usage

[Dog-Cow]

Retaining control of software usage is semantically identical to a book publisher claiming that using a book they published as a prop for an uneven table leg is violating copyright.

If a precedent is set to this effect, I would gladly advocate violating the "rights" of everyone involved in this decision. I really cannot understand why people like this are tolerated. Deport them. Imprison them. Kill them. But get rid of them.

Re:Retaining control of the usage

[hey!]

A few years ago I rented an old vacation cottage, and found there were a number of old hardcover books in it dating from around the time it was built. One of the books, printed in 1903 had something on the front end-paper that was very familiar.

It had a EULA.

The first sale doctrine was recognized by the Supreme Court five years after the book was printed.

The thing is that for whatever reason, the law has chosen to take a more complicated, nuanced/inconsistent stance on software EULAs. Be that as it may, it's dangerous to draw analogies with books for whatever purposes.

The thing about EULAs, is that they bootstrap a whole new set of rights for the copyright holder using copyright as the starting point. That's the whole point of a EULA; if all it did was protect your copyright, you wouldn't need one. You can't put a EULA in a book that says you can only criticize certain parts of it, or that you can't rent it or lend it to other people. But that is routinely done in software. You can't disassemble a piece of softare you "bought", and in many cases you aren't allowed to publish benchmarks.

Watch for criminal manslaughter charges....

[GuyverDH]

If Blizzard wins this, then they are in effect responsible for all the deaths of WoW players from marathon gaming sessions. They would then need to prevent anyone from playing over a reasonable number of hours straight without breaks.

If someone dies playing it, then it's how they intended the game to function, with manslaughter charges to follow...

Granted, this is an extremist point of view, but if they are going to take charge of how the game is played, then they must take responsibility to all effects the game has on the gamer.

You cannot take the right without the responsibility.

Wow!

[gstoddart]

So, could they say no fat people not wearing pants can use their software? How about nobody under the age of 30? Black people? White people? Brown people?

At what point, does their assertion they can control "how it is used" completely break down and be outside of the realm of copyright law, beyond what you can do in an EULA, and just plain silly.

I would say they've basically gone into the plain silly category. But, who knows. Courts have upheld the damnedest things.

Cheers

Re:Wow!

[gEvil (beta)]

So, could they say no fat people not wearing pants can use their software?

That would be sheer lunacy! They'd cut out nearly their entire customer base!

IAAAL (I am almost a lawyer) but...

[CaptainPatent]

It seems the article has a good point. Blizzard is trying to sue for what is a contract violation instead of a copyright violation. A copyright violation has a minimum penalty of $750 dollars because it usually deals with distribution of media and has real damage. Contract violation has no minimum because the damage dealt can vary so much.

In the case of Blizzard's WOW servers, I wouldn't even necessarily call what glider does "damage" to the server, but that will be up to the courts. If the judge has a head on his shoulder the most he'll hold contract violators responsible for is the cost to remove glider-users from the database split between all of the known glider users.

Re:IAAAL (I am almost a lawyer) but...

[astrotek]

It doesn't really damage the server but it probably damages the value of the game in the eyes of their customers.

Also tortious contract interference

[Dachannien]

Blizzard is also alleging the somewhat more sane claim of tortious contract interference, by saying that Blizzard is engaged in a contractual relationship with its customers, and MDY is willfully interfering, for profit, with that relationship.

The problem for Blizzard is that this claim is far more nebulous in terms of damages. Copyright law includes statutory damages, meaning that they don't actually have to prove that they were damaged, or by how much, if they win on the copyright claim.

Either way, getting injunctive relief against MDY is the most important thing, but if Blizzard can also get a monetary award, then it puts all the other cheat developers on notice that they could end up in very hot water if they don't close up shop. If all Blizzard manages to get is an injunction, however, cheat developers will likely just wait until they actually get sued before they bother to decide whether or not they will shut down their business.

Re:Also tortious contract interference

[Skye16]

I honestly don't know this, but...

Is MDY, really, for serious, interfering with that relationship? Or are they making materials available to the user that interferes with that relationship?

Let's use the only contract example analogy I can think of right now: Take a professional football player who has signed a contract that says "you can't ride a motorcycle" (see: Kellen Winslow, Ben Roethlisberger, etc). If I sell a motorcycle to either of them, how, exactly, am I interfering with the contract? Either of them could have purchased the bike for looks, or for a friend, or maybe for their dog. Maybe they were going to take it apart and make it into an airplane. Regardless of their contract with their respective organizations, I have not directly interfered, such as by forcing one of them to ride the motorcycle by gunpoint and thereby causing them to crash.

I guess I'm just really not sold on this interference thing. How many marriage contracts are ended when one spouse cheats on the other? How many times does the aggrieved spouse get to sue the interloper for interference?

I've heard of it before in some states, but the practice seemed very few and far between and rather sketchy sounding in implementation, so maybe there is precedent, but it doesn't sound exactly commonplace.

RAM as a copy

[91degrees]

I really don't like the idea that a copy of software in memory could be considered a copy for purposes of copyright law. Given that the copy only lasts as long as the software is in use, and cannot be readily separated from the copy on disk, and also that it is absolutely necessary to create to actually use the software, this should be considered purely part of the technological process of viewing the software.

Surely copyright law should only deal with those aspects of copying that affect distribution. Not use.

Re:This is what comes...

[Anonymous Coward]

After all, the woman who filed suit for burning herself crotch with a cup of coffee won (McDick's was found 80% responsible).

Shut the fuck up with this stupid urban legend. That was a completely legitimate case. Morons like you HURT the cause of tort reform by spreading that fucking rumor.

Re:This is what comes...

[Gybrwe666]

Ummm...you obviously haven't bothered to actually read or find out a single fact about this case, have you?

I'll lay out the really pertinent facts. You're welcome to find out more on your own.

The woman was severely burned. Initially, she asked McD's for $20k to cover medical expenses for her medical treatments. McD's refused to even talk to her.

Here's the kicker: the coffee at McD's (not just that one, but every single one, as they all operate under the guidance of the corporate office, and had the same coffee makers) was found to be keeping coffee *FAR* above a reasonably hot temperature. This was corporate policy. McDonalds had a policy to keep coffee between 180 and 190 degrees, which is not too terribly far from boiling.

She had 3rd Degree burns, as well as severe 2nd degree burns, and spent over a week in the hospital and required skin grafts.

There was also over 700 reports of burns due to the temperature of McDonalds coffee in the decade preceeding this incident. McDonalds had actually settled with many of these, to the tune of over $500k paid.

It was also testified that drinking McD's coffee at the time given to the customer at that temperature would burn *ANYONE'S* mouth. I find this to be true today, although its rumored that in the time since the lawsuit, McD's has again jacked temperatures.

So, lets see: serving a substance you know can cause 3rd degree burns, where you have a decade of claims arising from the practice, refusing a request (which you had granted to *MANY* others) for covering of legitimate medical expenses.

If you actually read the facts of the case, you'll see that the media coverage has omitted most of the pertinent facts on this case. McD's deserved what they got. They should have choked up the $20k and been done with it.

I don't know about you, but I don't like to drink coffee that can give me 3rd degree burns.

Obvious Value !

[wireloose]

At $750 per copy, this software is apparently worth $50 more than RIAA values songs. ($700 / song)

Re:Obvious Value !

[DustyShadow]

The $750 is coming from statutory damages in the Copyright Act.

In the United States, statutory damages are set out in Title 17, Section 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court. http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement

Limit

[Relic of the Future]

This is more appropriate under the last discussion (but since it was under the consistently lackluster "Games" topic, I didn't read it) but part of their complaint was:

"bots spend far more time in-game than an ordinary player would and consume resources the entire time."

So? You control the game. Limit the effectiveness, or boot people off (like they ALREADY DO in parts of SE Asia), when they've been on too long.

Or, you know, if your servers are accepting bogus input that lets people cheat, maybe you could validate the input first? (Or heck, if people a willing to pay to replace your "gameplay" with the use of a script, maybe that speaks to just how engaging your "gameplay" really is.)

Terms of Service

[Nom du Keyboard]

By using this product (Microsoft Word, hereafter referred to as Word) you agree to never never ever write anything critical about The Microsoft Corporation, Mr. Bill Gates, Mr. Steve Ballmer's chair throwing...

Why Blizzard is so Pissed!

[Nom du Keyboard]

Blizzard is just pissed (American definition, not British pissed) because Glyder gets around The Warden. They hate it when that happens.

They also hate it when you complete the game sooner rather than later because all that grinding earns them additional months of revenue from you, sucker!

Blizzard may be my favorite company, but please

[CrazyJim1]

I was one of the first people using bots and macros in Asheron's Call 1 then I was one of the most advanced bot makers in it. If your game is so simple that a bot can play it, maybe your game isn't really fun to play to begin with. If you have zones that a bot can play, maybe you should tool your game so bots can't play them. If your game is failing, it isn't because people are playing your game with bots.

Re:This is getting stupid.

[poetmatt]

Actually, it's still a grey area as far as accepting a EULA.

Note on the wiki for EULA software licenses, that post-purchase licenses are have been ruled both ways before. I think this example applies to Blizzard, however:

"In Specht v. Netscape Communications Corp., however, the licensee was able to download and install the software without first being required to review and positively assent to the terms of the agreement, and so the license was held to be unenforceable."

You have the software before you agree, so I suspect it may not be enforceable. I'm not a lawyer, please correct me if I am wrong.

Buy vs. Rent

[CustomDesigned]

I would agree with their theory in the case of rented software. Instead of selling the client, they should rent it to players. Then the players don't really own their copy, and Blizzard can rightly get mad when they screw around with it.

This is the same problem with MPAA and movies. If they don't want me to watch the movie on my choice of player - and maybe even cut out scenes I don't like - they should make it available for rental only.

Online gaming sacrificed for greater good

[tjstork]

Basically, if Blizzard loses, then, they can't effectively stop cheating on their systems. That pretty much hoses their business. On the other hand, if Blizzard wins, then, software companies essentially get the right to decide who inter operates with them, and that's just a worldwide disaster.

So, unfortunately, online gamers, but, gaming has to the needs of humanity for a free market. So, there's always going to be cheaters and you'll never really have an honest online game experience with strangers. About the best that Blizzard could do would be to try and have a secure link of some sort to dissuade developers from writing cheat-bots.

Re:Online gaming sacrificed for greater good

[Moridineas]

I think glider DOES cheat. Let's face it--WoW is not a skill heavy game. The entire time I played I can think of only one or two things that actually involved practice and skill to pull off (I guess end game content is slightly skillful). The rest is just grinding and variations of grinding (quest grinding, instance grinding, etc).

Basically WoW takes your time, and converts it into in game coolness--level, weapons, outfits, items, etc. Your time is basically the only game currency--when you eliminate the need to put in time, you're effectively cheating. No, you're not hacking the game code, or abusing the servers, but you ARE cheating.

Re:GPL does pretty much the same thing ...

[Chris Burke]

since the license is the only thing that grants permission to the copyrighted work

Only thing that grants permission to what the copyrighted work?

Use the copyrighted work? As in run the program? No, you need no permission whatsoever to do that. The only types of "use" copyright covers are public performances.

Copy and distribute the copyrighted work? Yes, because that's something that copyright actually covers.

Copy into memory for purposes of using the copyrighted work? No, because copyright law explicitly exempts copies made as a necessary part of using the work from being infringement.

Using the generic "grants permission to the work" is completely wrong. Copyright law only prohibits certain things. It is not a blanket grant of rights to control every aspect of the copyrighted work. The copyright holder does not have to grant permission "to" the work; they have nothing to do with that. If you purchase a legally created copy of a book, you can give that book to me, and the copyright holder has no say. If I try to create a duplicate of the book and give it away without permission, that is a violation of copyright.

GPL only attempts to grant things that are otherwise prohibited by copyright. EULAs try to prohibit things that are, otherwise, completely legal. The difference is huge.

Re:GPL does pretty much the same thing ...

[Haeleth]

I'm going to pretend that the quoted characterization is accurate. If so, then this sound very much like the GPL. The are both licenses. If you fail to comply with the terms of the GPL you are violating a copyright since the license is the only thing that grants permission to the copyrighted work, and if you fail to comply with the terms of the EULA you are violating a copyright since the license is the only thing that grants permission to the copyrighted work.

That's like saying that eating a burger is very much like eating a baby, because they're both meat.

GPL advocates all agree, and indeed take great pains to emphasize, that the GPL only applies to distribution. Nobody, not even RMS himself, would dream of asserting that the GPL has any power whatsoever over what you choose to do with GPL'd software in the privacy of your own computer, or even within your own company; it's only if you start making copies to give to other people that the GPL kicks in.

What Blizzard is claiming is completely different. They're claiming that their EULA means you aren't even allowed to run the program unless you comply with all their demands.

Broader effects

[Reziac]

After RTFAing, I'm wondering about broader effects, such as plugins and 3rd party helper apps for all sorts of software. Could we find ourselves restricted from installing any plugin not "approved" by the base-program's vendor??

Keygens for purchased software

[nurb432]

I agree totally. I have done that many times to get around the stupid hoops some companies make you go thru to get their stuff installed.

I remember one time with CA i had to actually photocopy all 6 sides of the box and the PO to get anew keycode ( previous IT guy lost them ). I gave up and got a keygen.

Same for windows, i had legit boxes for every workstation on NT4, but used one key for them all. It was just to much trouble to manage. If i ever got audited. 'oops, i i must have typed it wrong, but would you like to see the licenses i have here stored in the safe?'

Re:Keygens for purchased software

[Kimos]

Audio software is like this. Requiring keys from all previous updates. Some even require a USB security dongle to be plugged in at all times or the app shuts down. Using cracked versions of these tools save hours of key management and the trouble of using up a USB port for no good reason, even if you've got all the boxes shrink wrapped on the shelf.

Re:GPL does pretty much the same thing ...

[Chris Burke]

The copy on the hard drive is there subject to a license. RAM is unnecessarily confusing the issue.

But the necessary copying from disk to RAM is the foundation of their whole argument!

And once again you say in generic terms that a copy is "subject to a license" but you don't say for what. If you still aren't getting it, copyright is not a blanket statement that you can't do anything at all with a legally obtained copy of a work without permission. It grants specific rights to the copyright owner, and only certain actions violate that right.

So until you start talking about performing an action that violates the copyright holders rights, then no the copy on the hard drive is not subject to needing a license to be in compliance with copyright law.

Furthermore, the game downloads code at run-time after connecting. So violating the license at run-time applies as well.

Is that a necessary step of using the software? Yes it is, and thus no it is not a copyright violation.

Re:GPL does pretty much the same thing ...

[Drakantus]

Your logic is wrong. When you purchase something, you get certain rights automatically. For example, when you purchase a book at Borders, you get the right to read it along with the book, even though there isn't a license agreement attached to the book that specifically spells out your right to read the book. When you download a piece of GPL software, you can run it and use it without ever agreeing to the actual GPL. You only become concerned with the GPL when you want to do something you can't already do under the software's copyright.

Re:License vs Copy

[uncreativeslashnick]

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996). I believe that is the principal case and often cited, and I don't believe the US Supreme Court has yet ruled on this issue.

this link cited in the wikipedia article also provides some interesting discussion.

See my additional post also, where I acknowledge a mistake in my above post. It is also important to note that this is still a bit of a nebulous area of the law, so the blizzard case could have far-reaching impacts.

Re:License vs Copy

[Todd Knarr]

Why would there be such a difference? The Uniform Commercial Code doesn't indicate there's any difference in the terms of the default contract of sale. I didn't sign any other terms at the time of sale, so according to the UCC the default terms apply at that point. This "license" you talk about wasn't mentioned until after I got the software out of the box and started to install it. Why should some contract I was never offered and never accepted have anything to do with the terms under which I own my copy?

I'd note in the case of WoW and the Glider software there's another catch. Whether or not there's any copyright infringement on the client side, to play WoW you have to connect to Blizzard's servers. To connect you have to accept the Terms of Service for those servers. Using Glider violates those terms. No need to bring copyright or ownership vs. licensing of the client software into it. Glider's sole purpose, known to and intended by it's author, is to induce Blizzard's customers to break the agreement they have to make every time they log in. That's tortious interference with contract, as I understand it.

please no!

[Tom]

Oh please, pretty please, let them win this one and set a precedent.

I'm just dying for writing interesting EULAs that disallow you from using my software during full moon on thursdays if there is a cat in the house, or to write any letters that are stupid, or to access any website that contains the word "republican".

Please. The more idiotic, stupid and obvious the rules get, the better our chances that they're reworked altogether, instead of simply being patched onto indefinitely.

Re:Blizzard already lost....

[myowntrueself]

eventually I'll go get bored with the rest of you :)

I really tried very hard to persist and find interest in the game after lvl70. I got two toons to that level.

I got into a raiding guild and did some raiding... and it was boring as hell.

I went back to alts and thats actually interesting and exciting; there are still so many aspects of this game and areas that I have yet to explore. Its a huge world; see it from Horde and Alliance perspective.

Using a cheat to get a toon to 70 is just a huge waste of time and money. Its the leveling process thats really interesting and where you actually learn to play.

By having 'Glided' your way to 70 I am guessing that your ability to play your class will be about as good as someone who bought their account on ebay.

In effect, you have cheated *yourself*.

Re:This is what comes...

[Zatoichi007]

It is an INTERESTING response...almost word for word from the True Stella website. Now here's the rest of the facts (from True Stella) that you failed to include: #The resulting $640,000 isn't the end either. Liebeck and McDonald's entered into secret settlement negotiations rather than go to appeal. The amount of the settlement is not known -- it's secret! #The plaintiffs were apparently able to document 700 cases of burns from McDonald's coffee over 10 years, or 70 burns per year. But that doesn't take into account how many cups are sold without incident. A McDonald's consultant pointed out the 700 cases in 10 years represents just 1 injury per 24 million cups sold! For every injury, no matter how severe, 23,999,999 people managed to drink their coffee without any injury whatever. Isn't that proof that the coffee is not "unreasonably dangerous"? #Even in the eyes of an obviously sympathetic jury, Stella was judged to be 20 percent at fault -- she did, after all, spill the coffee into her lap all by herself. The car was stopped, so she presumably was not bumped to cause the spill. Indeed she chose to hold the coffee cup between her knees instead of any number of safer locations as she opened it. Should she have taken more responsibility for her own actions? And... # Here's the Kicker: Coffee is supposed to be served in the range of 185 degrees! The National Coffee Association recommends coffee be brewed at "between 195-205 degrees Fahrenheit for optimal extraction" and drunk "immediately". If not drunk immediately, it should be "maintained at 180-185 degrees Fahrenheit." (Source: NCAUSA.) SO YES...APPARENTLY, MOST PEOPLE APPARENTLY DO LIKE COFFEE THAT CAN GIVE THEM 3RD DREGREE BURNS Exactly what, then, did McDonald's do wrong? Did it exhibit "willful, wanton, reckless or malicious conduct" -- the standard in New Mexico for awarding punitive damages?

Re:It's up to the developer and consumer

[Technician]

I find it much easier and more efficient to just steal the stuff.

I find it much easier and mor effecient to find software that meets my needs.

If the developer wants to make crippleware and then try to get me to buy it, that's his choice. I make it very clear that doing this will kill sales. It's then up to the developer to balance the anal retentive need to prevent any piracy with the need to meet market demands to make sales.

Some prime examples.. Microsoft Office. One license, one machine and maybe a laptop by the same owner. Open Office. One license, free to install on any and all machines in your house and free to give away copies (following license terms to distribute source and the license intact). Same for Photoshop and the Gimp.

I picked up a copy of Light Factory. The original version had no copy protection other than encoding your user name into the installed product with an email registration. Your PC could be installed on your upgraded PC without phoning home. They then upgraded and used your hardware as a dongle like MS does with the WGA stuff. I didn't upgrade with Light Factory. I now use Freestyler.

Then there is the choice of OS. Needless to say, I'm not running anything with WGA. (I'm not pirating it either)

Re:Rights you already have

[Mr2001]

If you have purchased a copy of the program under a license that limits your rights, then you have purchased less than the entire interest in your copy. A court may find that you are not actually the "owner" of that copy. Has a court actually ever found that a person who purchased a copy of software is not the "owner" under 17 USC 117, or is this just speculation?

Generally, when you buy something without having to agree to any contract first, you become the owner of that thing. Some courts have upheld that principle when applying the first sale doctrine to software, for example: the EULA can't stop you from reselling it, because you're the owner and selling it is your right.

Correct me if I'm wrong (with citations, please), but my understanding is that in order for an exchange of money for goods not to be considered a sale, it must be established beforehand that the item is being leased or rented instead of sold. That is not what happens with software: you bring a box to the counter and exchange money for it, with no promise to ever surrender it, just like buying a book. No one would seriously argue that some text on the inside cover of a book could change the transaction from a sale to something else, right?