There's a lot of behind-the-scenes dealmaking going on to try and insinuate copy protection methods into DTV signals. They're trying to prevent people from recording programming off the air (since that would prevent you from buying the home video version of whatever it is).
Pay very close attention to this. Look for copy protection systems in the upcoming standards, and call attention to them. It's very important that it not come to pass.
This license "agreement" shipped with a version of Worldcraft, a Quake (and others) map editor published by Activision. This sort of shameless, wholesale, unjustifiable theft of our rights must not be allowed to continue. There is absolutely no legitimate, defensible reason for shrinkwrap "licenses" to exist at all.
This "license" is a couple of years old. I do not know if Worldcraft still ships with this abomination. My commentary appears in italics (but remember, I Am Not A Lawyer).
_______________________________________________
Software License Agreement Summary:
These Utilities are for your sole, personal use
They are unsupported by Activision, Raven, and id
Levels created by these tools may not be sold or used commercially as defied [sic] by the Software License Agreement below.
I feel this summary grossly understates the full import of the license, as I'll point out later.
The use of this software is subject to the terms of the Software License Agreement below. You must accept the Software License Agreement before you can use Level Utilities. The Level Utilities are provided strictly for your personal use. The use of the Level Utilities is subject to additional license restrictions contained in the Software License Agreement and may not be commercially exploited.
SOFTWARE LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY: THE LEVEL PROCESSING UTILITIES (THE "LEVEL UTILITIES") FOR USE WITH HEXEN II (THE "PROGRAM") ALLOWS YOU TO CREATE CUSTOMIZED NEW GAME LEVELS AND OTHER RELATED GAME MATERIALS FOR PERSONAL USE IN CONNECTION WITH THE PROGRAM ("NEW GAME MATERIALS"). THE USE OF THE LEVEL UTILTIES IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. BY USING THE LEVEL UTILTIES, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT WITH ACTIVISION, INC. ("ACTIVISION"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE UTILITIES AND COMPLETELY REMOVE THEM FROM YOUR COMPUTER AND YOUR POSESSION.
Note that they define the term "Program", and then almost never use it again, referring instead to the "Product." I presume this is the same as the "Program," but this document does nothing to make that clear.
LIMITED USE LICENSE. Activision grants you the non-exclusive, non-transferable, limited right to use the Level Utilities for the purpose of creating New Game Materials solely and exclusively for personal use. For purposes of this Agreement, "New Game Materials" represent computer data that modifies, substitutes for or adds new materials to the materials currently contained in the Product, thus modifying or replacing one or more existing game levels and other constituent elements provided in the Product. [[ Note that, as worded, this sentence encompasses levels that are devoid of any of Activision's property, containing artwork and geometry that is completely original with you. ]] You shall not create New Game Materials, or tools that have no substantial purpose other than to contribute to the creation of New Game Materials, except as expressly permitted pursuant to this Agreement. [[ Pay close attention to that one. Not only are you precluded from distributing New Game Materials commercially, you are precluded from developing a competing level editor (possibly one with a less draconian license). ]] All rights not specifically granted under this Agreement are reserved by Activision and, as applicable, its licensors. The Level Utilities are licensed, not sold. Your license and the use of the Level Utilities confers no title or ownership in the Level Utilities or the New Game Materials created using the Level Utilities and should not be construed as a sale of any rights in the Level Utilities or such New Game Materials.
Now watch closely. Here comes the biggie. As Dave Barry would say, "I swear I am not making this up:"
OWNERSHIP. All title, ownership rights and intellectual property rights in and to the Level Utilities and the New Game Materials created by you using the Construction Kit are owned by Activision or its licensors and are protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. In the event that you should, by operation of law, be deemed to retain any rights in any New Game Materials created by you, you, by using the Level Utilities, hereby irrevocably assign, without any further consideration and regardless of any use by Activision of such New Game Materials, all of your rights and interest, if any, in and to such New Game Materials to Activision. You also hereby grant Activision an irrevocable, perpetual, exclusive, fully paid and royalty-free license to exercise any rights, including moral rights, to any and all aspects of the New Game Materials. You agree that Activision shall have the full and complete right to package, publish, print, copy, promote, market, distribute, transfer and display the New Game Materials created by you and prepare derivative works based upon such New Game Materials, and any derivative works thereof, anywhere throughout the world.
LICENSE CONDITIONS. You agree that as a condition to Activision's consent to allow you to use the Level Utilities, you will not use or allow third parties to use the Level Utilities and the New Game Materials created by you for commercial purposes, including but not limited to selling, renting, leasing, licensing, distributing, or otherwise transferring the ownership of such New Game Materials, whether on a stand alone basis or packaged in combination with the New Game Materials created by others, through any and all distribution channels, including, without limitation, retail sales and on-line electronic distribution. You agree not to solicit, initiate or encourage any proposal or offer from any person or entity to create any New Game Materials for commercial distribution. You agree to promptly inform Activision in writing of any instances of your receipt of any such proposal or offer.
Notice how vague this last bit is; that it does not say, "...to use the Level Utilities to create any New Game Materials for commercial distribution." It is not clear that "New Game Materials" refers only to those levels produced using the licensed copy of Worldcraft. Therefore, this could be construed as not just giving up your right to commercially exploit levels created with Worldcraft, but giving up your right to sell your level-creating abilities at all.
If you decide to make available the use of the New Game Materials created by you to your friends, family, co-workers and other fellow gamers, you agree to do so solely without charge.
You shall create New Game Materials only if such New Game Materials can be used exclusively in combination with the retail version of the Product. The New Game Materials may not be designed to be used as a stand-alone product.
New Game Materials shall not contain modifications to any COM, EXE or DLL files or to any other executable Product files.
New Game Materials must not contain any illegal, obscene or defamatory materials, [[ So much for a South Park level... ]] materials that infringe rights of privacy and publicity of third parties or (without appropriate irrevocable licenses granted specifically for that purpose) any trademarks, copyright-protected works or other properties of third parties.
New Game Materials must contain prominent identification at least in any on-line description and with reasonable duration on the opening screen: (a) the name and E-mail address of the New Game Materials' creator(s) and (b) the words "THIS MATERIAL IS NOT MADE OR SUPPORTED BY ACTIVISION."
You will not use the Level Utilities to reverse engineer, extract source code, modify, decompile or disassemble the Program, in whole or in part.
That one again. (grrr...)
TERMINATION. Without prejudice to any other rights of Activision, this Agreement will terminate automatically if you fail to comply with its terms and conditions. In such event, you must immediately discontinue the use of the Level Utilities and any New Game Materials created using the Level Utilities.
Note: You lose not only your right to use the program, but your right to use anything you created with it.
INJUNCTION. Because Activision would be irreparably damaged if the terms of this Agreement were not specifically enforced, [[ Shyeah, right... ]] you agree that Activision shall be entitled, without bond, other security or proof of damages, [[ Wait, no proof of damages? I should just take your word for it? ]] to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Activision may otherwise have under applicable laws.
INDEMNITY. You agree to indemnify, defend and hold Activision, its partners, licensors, affiliates, contractors, officers, directors, employees and agents (specifically including, but not limited to, Id Software, inc., and Raven Software, inc.) harmless from all damages, losses and expenses arising directly or indirectly from your acts and omissions to act in using the Level Utilities pursuant to the terms of this Agreement
MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. [[ It may be enacted, however, by you installing the program... ]] If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of this Agreement shall not be affected. This Agreement shall be construed under California law as such law is applied to agreements between California residents entered into and to be performed within California, except as governed by federal law and you consent to the exclusive jurisdiction of the state and federal courts in Los Angeles, California.
If you have any questions concerning this license, you may contact Activision at 3100 Ocean Park Boulevard, Santa Monica, California90405, (310) 255-2000, Attn. Business and Legal Affairs, legal@activision.com
There is no one to blame: It's fiction.
on
Copyrant
·
· Score: 5
The loss to industry due to unsanctioned copying is... Zero! That's right! Zilch! Nada! Zip!
My methodology for arriving at this figure is every bit as valid as that used by the SPA/BSA to arrive at their figures. Both methodologies attempt to measure events (sales) that didn't happen. Since this is impossible, it hardly matters what fancy formulae you use to justify it. So you can, like the SPA/BSA, pull any number out of your ass and claim that as your loss.
Gimme a fscking break.
Have another example: To combat unsanctioned copying, Unreal Tournament uses a form a copy protection that checks for the presence of the CD in the drive. This technique is easily hackable, and w4r3zed copies exist. However, Quake-3 uses a central server-based authentication system based on the CD key you have to type in when you install the game. When you try to play on the net, it sends your key to your-papers-please.idsoftware.com (note: may not be actual server name), which then grants you permission to use your property. id's system is foolproof and unhackable, since they alone maintain the database of valid keys.
So, if they SPA/BSA's propoganda is correct, Quake-3 should be selling a fsckload more units than Unreal Tournament, since Q3's copy protection is foolproof, right? We can even measure it fairly easily, since they came out at roughly the same time.
Check the sales figures, pal. They're about even.
The propoganda does not bear even the slightest scrutiny. Unsanctioned copying is not, and never has been, a credible threat to software sales. Get over it.
Very nice piece, Michael. Allow me to chime in with my own editorial on the subject.
Just one nit: "Ordinary people" have been purchasing software over the counter for well over twenty years, not ten. I can still remember seeing Brøderbund's "Apple Panic" hanging on a peg in ComputerLand.
Think what you will of Jerry Pournelle, the fact is that, in the early 1980's, he was one of the best known and most respected commentators on the computer industry. When he first encountered shrinkwrap "licenses", he minced no words in proclaiming such documents absolute bullshit. (This is a guy who writes for a living, so he knows what copyright lets him do.) So, for the last twenty years, it's been no secret to the software publishers that these so-called "contracts" are not taken seriously by anyone.
Unfortunately, there are a few stumbling blocks standing in the way of a sane resolution to this issue. The first is that, according to the Uniform Commercial Code, software is not a "good" and therefore is not subject to the normal rules applying to retail sales. The second is that, sadly, there are several court decisions that have allowed these "contracts" to stand. Check out badsoftware.com for more details than you can stomach.
The publishers have all their ducks lined up in a row (lawyers, warped court decisions spanning 20 years, bought-and-paid-for politicians), so I fear the only way to fix this is via a massive PR campaign. Direct people to this and other advocacy sites. Tell your friends, especially those who aren't computer literate. You'll have litle trouble convincing them this is nonsense. In fact, I daresay the only people you'll get an argument out of are software lawyers.
In the meantime, if you find yourself saddled with a machine absent a proper installation CD, return it to the place of purchase and complain loudly. Sadly, it's the only club we have to wield right now, so let's make the most of it.
For this to work right, you would probably need the DirectX APIs (I wonder how Loki does that?)
With extreme difficulty.
The DirectX suite is an unmitigated disaster. DirectDraw and DirectSound are somewhat non-sucky, but the rest of it is absolute excrement.
DirectPlay doesn't actually work, and never did (read Unix Network Programming by Stevens and write your own UDP packet handling; it's easy). With the exception of force-feedback joysticks, DirectInput doesn't provide anything you can't get from Windows event messages. OpenGL does everything Direct3D claims to do and more, does it better and faster, and does it in one-third the application code. All of DirectX is based on Microsoft's COM which is a slug by design.
This is not to say that Linux is any speed freak in such matters (so far), but trying to create a DirectX compatibility layer is not going to buy you anything except an ulcer.
DirectX is a complete loss from top to bottom. There are a half-dozen or so interesting ideas in DirectX worth exploring, but there's plenty of room for better ideas and APIs. Go develop them, and leave DirectX to die in well-deserved obscurity.
Netpliance posted their quarterly report not too long ago. In it are figures describing the number of subscribers they've gotten so far, and a line item for "appliance subsidies". Divide it out, and you get about $400 per subscriber. Add the $99 iOpener charges the customer, and you get $500/machine.
Unless SiS has some kind of leverage against the MPAA, expect a binary-only driver with an undocumented API/ioctl() set that basically only lets you play DVDs in a window. Exposing a general API would allow (gasp!) copying or other "unauthorized" digital manipulation of the MPEG stream.
Personally, I'd like to be able to drive the decompression process myself, so I can use the movie as an OpenGL texture to map on to a sphere and bounce it around. The Cthugha-like possibilities are endless, but only if programmers can get at the data in a meaningful way.
I personally don't see anything intrinsically wrong with copying stuff. I see "piracy" as about as serious a threat to the fabric of commerce and society as speeding on the road. We have built for ourselves a Star-Trek-style replicator for digital artifacts, and I think it's quite silly to pretend it's wrong to use it.
However, I think Linus et al recognize that respecting duplication/distribution restrictions is the only mechanism by which the GPL survives. The GPL says you can make copies, but only if you do certain things. The music publishers say you can't make copies at all for any reason. This is an extremely childish point of view, and we must work to help them realize this. Nevertheless, until they make a different decision, we must observe their wishes, however strenuously we may disagree with them.
So while I would very much like to see all the spoiled brats at RIAA sealed in a pit of their own filth, I must reluctantly conclude that we need to observe their distribution restrictions. Ethically, we must do this if we realistically expect them to observe the redistribution conditions in the GPL.
(BTW, it's interesting to observe that Open Source works, which derive considerable independent value from your ability to make copies -- in addition to being of generally higher quality -- are generally distributed at no cost; whereas closed-source works, whose value is diminished by prohibitions against copying, costs money.)
Of course it is easy to sarcasticaly dismiss something when you have not put any thought into your own argument.
I've been thinking about this for over 20 years, ever since Warner Communications sued H.A.L. Labs for their Pac Man clone on the Apple ][.
The ability to copy someone's thoughts and work does not diminish the amount of work that went in to create them.
No one's saying it does.
Further this notion of infinite abundance is seriously flawed. [... ] You are confusing the ability to copy something with the effort of creation.
No, I daresay you're the one who's confusing them. You seem to be arguing that, because one is expensive and/or time-consuming, the other one should be, too. The fact is creation and duplication are orthogonal activities; the two are unrelated. So you're putting the toll booth in the wrong place. It shouldn't be at the output of the Xerox machine, it should be at the door to the artisan's studio.
So your next argument will likely be, "Well, shouldn't the guy who paid the artisan be able to recover their costs?" Well, they're certainly entitled to try. But, honestly, why does this logically follow? More precisely, why should cost recovery be implemented by trying to assert control over the duplication/distribution process, especially when everyone knows that computers will make as many copies as you want without question?
There are lots of other ways to compensate artisans fairly for their work. We should start exploring them, since controlling artifact duplication isn't going to work (at least not without some seriously draconian measures).
It's extremely easy to be sarcastically dismissive of your "argument", since it's evident you haven't given the issues much thought. Nevertheless, I'm feeling foolish today, so I'll give it a try:
I do not understand how you could possibly think that the concept of intellectual property is obsolete in the digital age.
Intellectual "property" needs to be fundamentally redesigned. Existing laws attempt to establish control over the artifacts of creativity. This is now a pointless exercise, since the device that lets you use digital artifacts also lets you copy them in any quantity. This shouldn't come as a surprise to anyone; computers have always been designed to do this. Thus, intellectual property laws need to be redesigned to accept this new reality.
So the question is no longer, "How do we control copying artifacts?" The question is now, "How do we make a living off our creativity in a universe of infinite abundance?" This is a hard question, one I don't claim to have a complete answer to. Nevertheless, it is the core question, and it must be thought about.
The concept of "property" will never be obsolete until we live in a Communist society where your thoughts and your work are owned by the State. I do not wish for that day to ever happen.
Now you're just being mindlessly jingoistic. No one is suggesting the State own or control everything. There will always be a need to sculpt digital bits in new ways, and even in a universe of infinite abundance and copyability, an artisan will still own their reputation and their ability to sculpt those bits. You want a new sculpture? Pay the artisan for their time up front.
BTW, your supporting argument is a crock of horse manure generating methane [... ]
Slashdot post #191: Syntax error; missing argument.
I know I'm going to get flamed to a crisp for this, but here goes anyway:
The concept of "property" is obsolete in the digital universe. "Property" survives by operation of scarcity and inconvenience. There is no scarcity or inconvenience here. Thus, "property" collapses, unable to sustain itself.
Supporting argument: Try laying proprietary claim to the oxygen produced by the plants on your land.
Now, it happens that I think the Open Source community is ethically compelled to remove the verbatim reposts of Microsoft's documents. I have a long-ish justification for this, but briefly: The GPL operates by stipulating the conditions under which you may make and distribute copies. While much of Microsoft's "license" is utter bullshit, they do stipulate the conditions under which copies may be made. If we are to insist on equal treatment for redistribution conditions applied to GPL'd works, then we are ethically compelled to observe conditions for redistribution on Microsoft's works, however strenuously we may disagree with them.
In fact, the conspiracy theorist part of me wonders whether this was a deliberate ploy by Microsoft to torpedo the GPL and hijack Open Source works: "Well, you didn't obey our redistribution restrictions, so why should we obey yours?"
I see. So, may one conclude from your jibe that you believe copying digital media is a crime as heinous as rape? If so, your priorities are seriously out of whack.
Now, if you'd instead written, "speeding on the nation's highways," then you might have had point worth discussing.
You've oversimplified the question. You need to add a third choice:
Intellectual "Property" needs to be fundamentally redesigned. Intellectual "Property" laws primarily revolve around establishing who gets to control making duplicates of the artist's artifacts. In practical terms, this underlying concept is now obsolete, since digital artifacts can be duplicated in any quantity at zero cost. Thus, all Intellectual "Property" law founded on this concept collapses.
We must therefore redesign IP laws such that they acknowledge infinite, zero-cost duplication by anyone, anywhere. What sorts of things would you still want to protect? What sorts of activities would you still wish to deter by criminal/civil sanctions? (Hint: It mostly revolves around an artist's reputation, rather than their artifacts.)
This is the discussion we should be having, not obscenely expensive flamefests by overpaid mercenar^H^H^H^H^H^H^H^Hlawyers. Arguing about whether it's ethical to copy another artist's music is rather like arguing about whether it's ethical for tornadoes to strike trailer parks. While we may lament when it happens to someone we like, the fact is, it's going to happen, so it's probably a good idea to start structuring your life around this reality.
Again, I challenge you to find a piece of commercial closed-source software, for sale over-the-counter, that does not come with a "license" attached.
You're arguing that the consumer can vote by spending their dollars elsewhere. I contend that this scam is so widespread that, for all practical purposes, there is no "elsewhere;" no meaningful choice exists for the consumer.
Yes, it's closer, but that contract is negotiated and signed before you cut the check and get your hands on the laser system. The same is not true for software purchases.
I don't object to licenses per se. What I'm objecting to is the attempt to apply them in the context of a retail purchase of goods, a situation where consumers don't expect "weird things" to happen.
That's a bit different from the scenario I described. In your scenario, you're free to use the UL-tested outlet in a hospital, and no one will try and sue you for breach of "contract."
But there is no "right to use" -- or rather, the right to use is inherent in legitimately-granted access to the software.
Um, actually, according to the courts, no it isn't.
I was recently informed of this by a Slashdot post made by 'werdna' a few weeks ago, who provided the exact citation (and which I can't dig up at the moment).
Apparently, the "logic" goes like this: In order to use software, you have to load it off disk for execution. In the process of doing this, you are making a copy of the software, from the disk to memory. According to the courts, this is an infringing copy or derivative work which is not covered by Fair Use. Thus, loading a program into memory in order to use it is illegal unless the copyright holder expressly grants you a license to do so. Hence, the shrinkwrap. This decision has evidently been upheld by subsequent courts (perhaps Andrew will chime in with the legal citation again?).
Yes, this is complete idiocy, and needs to be fixed in a big way. (One wonders what color the sky is where these guys come from.)
Why exactly isn't the GPL a 'shrink-wrap' license?
Shrinkwraps constrain use; the GPL constrains redistribution. An analogy:
GPL: "As lawful posessor of this software, you're free to do anything you want with it. Because it's copyrighted, you can't make/distribute copies. However, if you agree to these terms, we'll implicitly grant you a license to make and distribute copies."
Typical shrinkwrap: "You must agree to give up ownership of this software, to not sue us, to not reverse-engineer the software, and anything else we can think of, or you can't use this software at all."
Which contract is the product of the more mature mind is left as an exercise for the reader.
Underwhelm discusses the very issues I've been beating on for the last ten years: Shrinkwraps are a harbinger of much more evil practices yet to come. One hypothetical situation in my parade of horribles (hi, Andrew!) is the following:
One day, you walk into Sears, and find all the hammers are gone, having been replaced with two hammers: the Craftsman(R) Personal Hammer, and the Craftsman(R) Enterprise Edition Hammer.
Both hammers come in a box with a "license" printed on it. On the Personal Hammer, the license says that you can only use the hammer for personal projects, home repairs on your own home only, etc. In particular, the license forbids you from selling/profiting from anything you use the hammer to build. On the Enterprise Edition Hammer, you are allowed to use it to build stuff for sale, provided you give to Sears 1% of the gross sale price of objects the hammer was used to build.
The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical.
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
Some would argue that Sears should be able to get away with it; they should be free to offer their products under any terms they choose, and if you don't like them, you can shop somewhere else. If this argument has merit, then it should be possible to purchase software under different terms.
I challenge anyone here to produce a shrinkwrapped box of closed-source software (a Linux/BSD distro doesn't count) that doesn't come with a "license." Games used to be free of such instruments; sadly, this is rapidly vanishing. Thus, the choice of alternate terms for commercial software, in practical terms, does not exist.
I believe this is an extremely bad state of affairs, and must be corrected.
Interested observers should check out Cem Kamer's Bad Software Web site. In particular, you'll want to read up on the court cases testing the provisions of shrinkwrap licenses and other contracts of adhesion. It's pretty depressing.
There is, sadly, a ton of case law supporting this garbage. This despite the fact that the crushing majority of people in the US alone have no idea what a shrinkwrap "license" is, let alone the specious legal reasoning on which they stand. Thus, while the law may be on their side, I believe public opinion can be marshalled to our side fairly easily, since the ethical issues and "common sense" are fairly clear here.
Start telling your friends and neighbors about this stuff, especially if they are not computer-savvy. It's the newcomers to the digital realm who stand to be screwed the most by this.
BTW, striking down shrinkwraps as unenforceable would not affect Open Source licenses (GPL, BSD, etc.). Shrinkwraps operate off an entirely different principle.
Why is it that this sort of thing seems to apply only to software? If somebody buys a lawnmower and it's faulty, resulting in a blade spinning out and maiming someone, then the manufacturer is going to be taken to task.
Because you "agreed" to a "contract" absolving the vendor of all liability.
Oh, and you don't own your software, either. You gave title back to the vendor when you "agreed" to the "license."
The main idea I've had so far is to create "brand recognition" a la Underwriters Laboratories. My working name is the Open Media Initiative.
The Open Media Initiative (OMI) would exist to analyze and certify devices and software as being free of copy protection and/or copy tracking measures. If you see an OMI logo on a product, you will know that product does not contain rubbish like CSS, Macrovision, "license authentication" systems (a la Quake 3 Arena or Half-Life), etc. By building brand/logo awareness of OMI and what OMI's goals do for the customer, it is my hope that consumers will stay away from non-OMI approved products, making them unviable in the marketplace. (Yeah, I know, a Libertarian pipe dream, but I think it's worth exploring further.)
Where the OMI's funding would come from is unclear. Manufacturers certainly wouldn't want to pay for licensing the trademarked OMI logo (at least not initially), and in fact it would probably be a poor idea for manufacturers to pay for it, as that kind of backwards leverage could easily cause OMI to become another TRUSTe.
The CPTWG (Copy Protection Technical Working Group) is pushing very hard to have copy protection measures incorporated into IEEE 1394 (FireWire) devices. The idea is to prevent "unauthorized" use of digital content, no matter where you tap into the chain.
Intel has put forward a proposal for incorporating copy protection measures into IEEE 1394. There's also an organization pushing Digital Transmission Content Protection which, if Hollywood gets its way, will be incorporated into your new digital televisions by the time NTSC signals go dark in 2006.
Slashdot Mirror
There's a lot of behind-the-scenes dealmaking going on to try and insinuate copy protection methods into DTV signals. They're trying to prevent people from recording programming off the air (since that would prevent you from buying the home video version of whatever it is).
Pay very close attention to this. Look for copy protection systems in the upcoming standards, and call attention to them. It's very important that it not come to pass.
Schwab
This license "agreement" shipped with a version of Worldcraft, a Quake (and others) map editor published by Activision. This sort of shameless, wholesale, unjustifiable theft of our rights must not be allowed to continue. There is absolutely no legitimate, defensible reason for shrinkwrap "licenses" to exist at all.
This "license" is a couple of years old. I do not know if Worldcraft still ships with this abomination. My commentary appears in italics (but remember, I Am Not A Lawyer).
_______________________________________________
Software License Agreement Summary:
The use of this software is subject to the terms of the Software License Agreement below. You must accept the Software License Agreement before you can use Level Utilities. The Level Utilities are provided strictly for your personal use. The use of the Level Utilities is subject to additional license restrictions contained in the Software License Agreement and may not be commercially exploited.
SOFTWARE LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY: THE LEVEL PROCESSING UTILITIES (THE "LEVEL UTILITIES") FOR USE WITH HEXEN II (THE "PROGRAM") ALLOWS YOU TO CREATE CUSTOMIZED NEW GAME LEVELS AND OTHER RELATED GAME MATERIALS FOR PERSONAL USE IN CONNECTION WITH THE PROGRAM ("NEW GAME MATERIALS"). THE USE OF THE LEVEL UTILTIES IS SUBJECT TO THE SOFTWARE LICENSE TERMS SET FORTH BELOW. BY USING THE LEVEL UTILTIES, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT WITH ACTIVISION, INC. ("ACTIVISION"). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE UTILITIES AND COMPLETELY REMOVE THEM FROM YOUR COMPUTER AND YOUR POSESSION.
LIMITED USE LICENSE. Activision grants you the non-exclusive, non-transferable, limited right to use the Level Utilities for the purpose of creating New Game Materials solely and exclusively for personal use. For purposes of this Agreement, "New Game Materials" represent computer data that modifies, substitutes for or adds new materials to the materials currently contained in the Product, thus modifying or replacing one or more existing game levels and other constituent elements provided in the Product.[[ Note that, as worded, this sentence encompasses levels that are devoid of any of Activision's property, containing artwork and geometry that is completely original with you. ]]
You shall not create New Game Materials, or tools that have no substantial purpose other than to contribute to the creation of New Game Materials, except as expressly permitted pursuant to this Agreement.
[[ Pay close attention to that one. Not only are you precluded from distributing New Game Materials commercially, you are precluded from developing a competing level editor (possibly one with a less draconian license). ]]
All rights not specifically granted under this Agreement are reserved by Activision and, as applicable, its licensors. The Level Utilities are licensed, not sold. Your license and the use of the Level Utilities confers no title or ownership in the Level Utilities or the New Game Materials created using the Level Utilities and should not be construed as a sale of any rights in the Level Utilities or such New Game Materials.
OWNERSHIP.
All title, ownership rights and intellectual property rights in and to the Level Utilities and the New Game Materials created by you using the Construction Kit are owned by Activision or its licensors and are protected by the copyright laws of the United States, international copyright treaties and conventions and other laws. In the event that you should, by operation of law, be deemed to retain any rights in any New Game Materials created by you, you, by using the Level Utilities, hereby irrevocably assign, without any further consideration and regardless of any use by Activision of such New Game Materials, all of your rights and interest, if any, in and to such New Game Materials to Activision. You also hereby grant Activision an irrevocable, perpetual, exclusive, fully paid and royalty-free license to exercise any rights, including moral rights, to any and all aspects of the New Game Materials. You agree that Activision shall have the full and complete right to package, publish, print, copy, promote, market, distribute, transfer and display the New Game Materials created by you and prepare derivative works based upon such New Game Materials, and any derivative works thereof, anywhere throughout the world.
LICENSE CONDITIONS.
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[[ So much for a South Park level... ]]
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[[ Shyeah, right... ]]
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[[ Wait, no proof of damages? I should just take your word for it? ]]
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[[ It may be enacted, however, by you installing the program... ]]
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The loss to industry due to unsanctioned copying is... Zero! That's right! Zilch! Nada! Zip!
My methodology for arriving at this figure is every bit as valid as that used by the SPA/BSA to arrive at their figures. Both methodologies attempt to measure events (sales) that didn't happen. Since this is impossible, it hardly matters what fancy formulae you use to justify it. So you can, like the SPA/BSA, pull any number out of your ass and claim that as your loss.
Gimme a fscking break.
Have another example: To combat unsanctioned copying, Unreal Tournament uses a form a copy protection that checks for the presence of the CD in the drive. This technique is easily hackable, and w4r3zed copies exist. However, Quake-3 uses a central server-based authentication system based on the CD key you have to type in when you install the game. When you try to play on the net, it sends your key to your-papers-please.idsoftware.com (note: may not be actual server name), which then grants you permission to use your property. id's system is foolproof and unhackable, since they alone maintain the database of valid keys.
So, if they SPA/BSA's propoganda is correct, Quake-3 should be selling a fsckload more units than Unreal Tournament, since Q3's copy protection is foolproof, right? We can even measure it fairly easily, since they came out at roughly the same time.
Check the sales figures, pal. They're about even.
The propoganda does not bear even the slightest scrutiny. Unsanctioned copying is not, and never has been, a credible threat to software sales. Get over it.
Schwab
Very nice piece, Michael. Allow me to chime in with my own editorial on the subject.
Just one nit: "Ordinary people" have been purchasing software over the counter for well over twenty years, not ten. I can still remember seeing Brøderbund's "Apple Panic" hanging on a peg in ComputerLand.
Think what you will of Jerry Pournelle, the fact is that, in the early 1980's, he was one of the best known and most respected commentators on the computer industry. When he first encountered shrinkwrap "licenses", he minced no words in proclaiming such documents absolute bullshit. (This is a guy who writes for a living, so he knows what copyright lets him do.) So, for the last twenty years, it's been no secret to the software publishers that these so-called "contracts" are not taken seriously by anyone.
Unfortunately, there are a few stumbling blocks standing in the way of a sane resolution to this issue. The first is that, according to the Uniform Commercial Code, software is not a "good" and therefore is not subject to the normal rules applying to retail sales. The second is that, sadly, there are several court decisions that have allowed these "contracts" to stand. Check out badsoftware.com for more details than you can stomach.
The publishers have all their ducks lined up in a row (lawyers, warped court decisions spanning 20 years, bought-and-paid-for politicians), so I fear the only way to fix this is via a massive PR campaign. Direct people to this and other advocacy sites. Tell your friends, especially those who aren't computer literate. You'll have litle trouble convincing them this is nonsense. In fact, I daresay the only people you'll get an argument out of are software lawyers.
In the meantime, if you find yourself saddled with a machine absent a proper installation CD, return it to the place of purchase and complain loudly. Sadly, it's the only club we have to wield right now, so let's make the most of it.
Schwab
With extreme difficulty.
The DirectX suite is an unmitigated disaster. DirectDraw and DirectSound are somewhat non-sucky, but the rest of it is absolute excrement.
DirectPlay doesn't actually work, and never did (read Unix Network Programming by Stevens and write your own UDP packet handling; it's easy). With the exception of force-feedback joysticks, DirectInput doesn't provide anything you can't get from Windows event messages. OpenGL does everything Direct3D claims to do and more, does it better and faster, and does it in one-third the application code. All of DirectX is based on Microsoft's COM which is a slug by design.
This is not to say that Linux is any speed freak in such matters (so far), but trying to create a DirectX compatibility layer is not going to buy you anything except an ulcer.
DirectX is a complete loss from top to bottom. There are a half-dozen or so interesting ideas in DirectX worth exploring, but there's plenty of room for better ideas and APIs. Go develop them, and leave DirectX to die in well-deserved obscurity.
Schwab
So what's to prevent the two new companies from poking holes in their firewalls for each other and sharing information informally?
Schwab
Netpliance posted their quarterly report not too long ago. In it are figures describing the number of subscribers they've gotten so far, and a line item for "appliance subsidies". Divide it out, and you get about $400 per subscriber. Add the $99 iOpener charges the customer, and you get $500/machine.
Schwab
Unless SiS has some kind of leverage against the MPAA, expect a binary-only driver with an undocumented API/ioctl() set that basically only lets you play DVDs in a window. Exposing a general API would allow (gasp!) copying or other "unauthorized" digital manipulation of the MPEG stream.
Personally, I'd like to be able to drive the decompression process myself, so I can use the movie as an OpenGL texture to map on to a sphere and bounce it around. The Cthugha-like possibilities are endless, but only if programmers can get at the data in a meaningful way.
Schwab
I personally don't see anything intrinsically wrong with copying stuff. I see "piracy" as about as serious a threat to the fabric of commerce and society as speeding on the road. We have built for ourselves a Star-Trek-style replicator for digital artifacts, and I think it's quite silly to pretend it's wrong to use it.
However, I think Linus et al recognize that respecting duplication/distribution restrictions is the only mechanism by which the GPL survives. The GPL says you can make copies, but only if you do certain things. The music publishers say you can't make copies at all for any reason. This is an extremely childish point of view, and we must work to help them realize this. Nevertheless, until they make a different decision, we must observe their wishes, however strenuously we may disagree with them.
So while I would very much like to see all the spoiled brats at RIAA sealed in a pit of their own filth, I must reluctantly conclude that we need to observe their distribution restrictions. Ethically, we must do this if we realistically expect them to observe the redistribution conditions in the GPL.
(BTW, it's interesting to observe that Open Source works, which derive considerable independent value from your ability to make copies -- in addition to being of generally higher quality -- are generally distributed at no cost; whereas closed-source works, whose value is diminished by prohibitions against copying, costs money.)
Schwab
I've been thinking about this for over 20 years, ever since Warner Communications sued H.A.L. Labs for their Pac Man clone on the Apple ][.
No one's saying it does.
No, I daresay you're the one who's confusing them. You seem to be arguing that, because one is expensive and/or time-consuming, the other one should be, too. The fact is creation and duplication are orthogonal activities; the two are unrelated. So you're putting the toll booth in the wrong place. It shouldn't be at the output of the Xerox machine, it should be at the door to the artisan's studio.
So your next argument will likely be, "Well, shouldn't the guy who paid the artisan be able to recover their costs?" Well, they're certainly entitled to try. But, honestly, why does this logically follow? More precisely, why should cost recovery be implemented by trying to assert control over the duplication/distribution process, especially when everyone knows that computers will make as many copies as you want without question?
There are lots of other ways to compensate artisans fairly for their work. We should start exploring them, since controlling artifact duplication isn't going to work (at least not without some seriously draconian measures).
Schwab
It's extremely easy to be sarcastically dismissive of your "argument", since it's evident you haven't given the issues much thought. Nevertheless, I'm feeling foolish today, so I'll give it a try:
Intellectual "property" needs to be fundamentally redesigned. Existing laws attempt to establish control over the artifacts of creativity. This is now a pointless exercise, since the device that lets you use digital artifacts also lets you copy them in any quantity. This shouldn't come as a surprise to anyone; computers have always been designed to do this. Thus, intellectual property laws need to be redesigned to accept this new reality.
So the question is no longer, "How do we control copying artifacts?" The question is now, "How do we make a living off our creativity in a universe of infinite abundance?" This is a hard question, one I don't claim to have a complete answer to. Nevertheless, it is the core question, and it must be thought about.
Now you're just being mindlessly jingoistic. No one is suggesting the State own or control everything. There will always be a need to sculpt digital bits in new ways, and even in a universe of infinite abundance and copyability, an artisan will still own their reputation and their ability to sculpt those bits. You want a new sculpture? Pay the artisan for their time up front.
Slashdot post #191: Syntax error; missing argument.
Schwab
I know I'm going to get flamed to a crisp for this, but here goes anyway:
The concept of "property" is obsolete in the digital universe. "Property" survives by operation of scarcity and inconvenience. There is no scarcity or inconvenience here. Thus, "property" collapses, unable to sustain itself.
Supporting argument: Try laying proprietary claim to the oxygen produced by the plants on your land.
Now, it happens that I think the Open Source community is ethically compelled to remove the verbatim reposts of Microsoft's documents. I have a long-ish justification for this, but briefly: The GPL operates by stipulating the conditions under which you may make and distribute copies. While much of Microsoft's "license" is utter bullshit, they do stipulate the conditions under which copies may be made. If we are to insist on equal treatment for redistribution conditions applied to GPL'd works, then we are ethically compelled to observe conditions for redistribution on Microsoft's works, however strenuously we may disagree with them.
In fact, the conspiracy theorist part of me wonders whether this was a deliberate ploy by Microsoft to torpedo the GPL and hijack Open Source works: "Well, you didn't obey our redistribution restrictions, so why should we obey yours?"
We must needs tread carefully here...
Schwab
I see. So, may one conclude from your jibe that you believe copying digital media is a crime as heinous as rape? If so, your priorities are seriously out of whack.
Now, if you'd instead written, "speeding on the nation's highways," then you might have had point worth discussing.
Schwab
You've oversimplified the question. You need to add a third choice:
Intellectual "Property" needs to be fundamentally redesigned.
Intellectual "Property" laws primarily revolve around establishing who gets to control making duplicates of the artist's artifacts. In practical terms, this underlying concept is now obsolete, since digital artifacts can be duplicated in any quantity at zero cost. Thus, all Intellectual "Property" law founded on this concept collapses.
We must therefore redesign IP laws such that they acknowledge infinite, zero-cost duplication by anyone, anywhere. What sorts of things would you still want to protect? What sorts of activities would you still wish to deter by criminal/civil sanctions? (Hint: It mostly revolves around an artist's reputation, rather than their artifacts.)
This is the discussion we should be having, not obscenely expensive flamefests by overpaid mercenar^H^H^H^H^H^H^H^Hlawyers. Arguing about whether it's ethical to copy another artist's music is rather like arguing about whether it's ethical for tornadoes to strike trailer parks. While we may lament when it happens to someone we like, the fact is, it's going to happen, so it's probably a good idea to start structuring your life around this reality.
Schwab
Again, I challenge you to find a piece of commercial closed-source software, for sale over-the-counter, that does not come with a "license" attached.
You're arguing that the consumer can vote by spending their dollars elsewhere. I contend that this scam is so widespread that, for all practical purposes, there is no "elsewhere;" no meaningful choice exists for the consumer.
Schwab
Yes, it's closer, but that contract is negotiated and signed before you cut the check and get your hands on the laser system. The same is not true for software purchases.
I don't object to licenses per se. What I'm objecting to is the attempt to apply them in the context of a retail purchase of goods, a situation where consumers don't expect "weird things" to happen.
Schwab
That's a bit different from the scenario I described. In your scenario, you're free to use the UL-tested outlet in a hospital, and no one will try and sue you for breach of "contract."
Schwab
Um, actually, according to the courts, no it isn't.
I was recently informed of this by a Slashdot post made by 'werdna' a few weeks ago, who provided the exact citation (and which I can't dig up at the moment).
Apparently, the "logic" goes like this: In order to use software, you have to load it off disk for execution. In the process of doing this, you are making a copy of the software, from the disk to memory. According to the courts, this is an infringing copy or derivative work which is not covered by Fair Use. Thus, loading a program into memory in order to use it is illegal unless the copyright holder expressly grants you a license to do so. Hence, the shrinkwrap. This decision has evidently been upheld by subsequent courts (perhaps Andrew will chime in with the legal citation again?).
Yes, this is complete idiocy, and needs to be fixed in a big way. (One wonders what color the sky is where these guys come from.)
Schwab
Shrinkwraps constrain use; the GPL constrains redistribution. An analogy:
GPL: "As lawful posessor of this software, you're free to do anything you want with it. Because it's copyrighted, you can't make/distribute copies. However, if you agree to these terms, we'll implicitly grant you a license to make and distribute copies."
Typical shrinkwrap: "You must agree to give up ownership of this software, to not sue us, to not reverse-engineer the software, and anything else we can think of, or you can't use this software at all."
Which contract is the product of the more mature mind is left as an exercise for the reader.
Schwab
Underwhelm discusses the very issues I've been beating on for the last ten years: Shrinkwraps are a harbinger of much more evil practices yet to come. One hypothetical situation in my parade of horribles (hi, Andrew!) is the following:
One day, you walk into Sears, and find all the hammers are gone, having been replaced with two hammers: the Craftsman(R) Personal Hammer, and the Craftsman(R) Enterprise Edition Hammer.
Both hammers come in a box with a "license" printed on it. On the Personal Hammer, the license says that you can only use the hammer for personal projects, home repairs on your own home only, etc. In particular, the license forbids you from selling/profiting from anything you use the hammer to build. On the Enterprise Edition Hammer, you are allowed to use it to build stuff for sale, provided you give to Sears 1% of the gross sale price of objects the hammer was used to build.
The Personal Hammer is $35.00; the Enterprise Edition Hammer is $550.00. In all other respects, the hammers are absolutely identical .
According to all the case law out there dealing with shrinkwraps, Sears could get away with this, and would have the right to sue you if you misused "their" hammer.
Some would argue that Sears should be able to get away with it; they should be free to offer their products under any terms they choose, and if you don't like them, you can shop somewhere else. If this argument has merit, then it should be possible to purchase software under different terms.
I challenge anyone here to produce a shrinkwrapped box of closed-source software (a Linux/BSD distro doesn't count) that doesn't come with a "license." Games used to be free of such instruments; sadly, this is rapidly vanishing. Thus, the choice of alternate terms for commercial software, in practical terms, does not exist.
I believe this is an extremely bad state of affairs, and must be corrected.
Schwab
Interested observers should check out Cem Kamer's Bad Software Web site. In particular, you'll want to read up on the court cases testing the provisions of shrinkwrap licenses and other contracts of adhesion. It's pretty depressing.
Schwab
Once again, allow me to shamelessly plug my editorial putting the case against shrinkwrap "licenses".
There is, sadly, a ton of case law supporting this garbage. This despite the fact that the crushing majority of people in the US alone have no idea what a shrinkwrap "license" is, let alone the specious legal reasoning on which they stand. Thus, while the law may be on their side, I believe public opinion can be marshalled to our side fairly easily, since the ethical issues and "common sense" are fairly clear here.
Start telling your friends and neighbors about this stuff, especially if they are not computer-savvy. It's the newcomers to the digital realm who stand to be screwed the most by this.
BTW, striking down shrinkwraps as unenforceable would not affect Open Source licenses (GPL, BSD, etc.). Shrinkwraps operate off an entirely different principle.
Schwab
Because you "agreed" to a "contract" absolving the vendor of all liability.
Oh, and you don't own your software, either. You gave title back to the vendor when you "agreed" to the "license."
Schwab
The main idea I've had so far is to create "brand recognition" a la Underwriters Laboratories. My working name is the Open Media Initiative.
The Open Media Initiative (OMI) would exist to analyze and certify devices and software as being free of copy protection and/or copy tracking measures. If you see an OMI logo on a product, you will know that product does not contain rubbish like CSS, Macrovision, "license authentication" systems (a la Quake 3 Arena or Half-Life), etc. By building brand/logo awareness of OMI and what OMI's goals do for the customer, it is my hope that consumers will stay away from non-OMI approved products, making them unviable in the marketplace. (Yeah, I know, a Libertarian pipe dream, but I think it's worth exploring further.)
Where the OMI's funding would come from is unclear. Manufacturers certainly wouldn't want to pay for licensing the trademarked OMI logo (at least not initially), and in fact it would probably be a poor idea for manufacturers to pay for it, as that kind of backwards leverage could easily cause OMI to become another TRUSTe.
Thoughts, anyone?
Schwab
The CPTWG (Copy Protection Technical Working Group) is pushing very hard to have copy protection measures incorporated into IEEE 1394 (FireWire) devices. The idea is to prevent "unauthorized" use of digital content, no matter where you tap into the chain.
Intel has put forward a proposal for incorporating copy protection measures into IEEE 1394. There's also an organization pushing Digital Transmission Content Protection which, if Hollywood gets its way, will be incorporated into your new digital televisions by the time NTSC signals go dark in 2006.
Anyone wanna help me try to stop this garbage?
Schwab