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.

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?

[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?

[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?

[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.

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

[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.

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

[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.

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!

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: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)

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.)

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.