I wish they'd enlightened us as to some of their 'subjective' reasons for their choices. The Northwest Arkansas metro area (Fayetteville, Springdale, Bentonville & Rogers) regularly makes the top ten of 'best places to live' lists. It's not New York, if that's your thing, but then they listed Boston & SF, too, so WTF?
I don't want to sound like a condescending ass, but I am a lawyer. (So I guess that makes me a condescending ass . . . ? Not exactly how I meant it, but sure sounds that way, & can't really argue.)
The '900-page' contract you mention would be unenforceable, but not because someone missed that clause. In every jurisdiction in the US there are four (depending on how they're broken down) requirements for a valid contract: competent parties, legal subject matter, mutual agreement, and valid consideration.
The first is easy - you can't hold a 6-year-old or insane person to their agreements. The second means that contracts for drugs or prostitution are not enforceable. The third means that the parties agree on what the contract is. And the fourth is that there has to be an exchange of something valuable - an agreement to give someone a gift is not enforceable (in most circumstances).
Totally aside from the fraud/misrepresentation issue of trying to trick someone out of their car, the contract you're talking about would be voidable for lack of consideration: it doesn't have to be equal, but you have to show that each side intended to give up something of value to them in exchange for what the other side was giving up.
You could argue a lack of consideration when you think you're getting an unencumbered piece of software, and the other side knows you're only getting a limited license, but you will run into all sorts of problems with that. First, the sofware vendor is going to be able to point out that everyone in the industry only sells licenses, and they'll be able to give examples of mammoth organizations like Wal-Mart or the U.S. government purchasing software on a per-seat license basis. Second, they're going to argue that there would be a failure of consideration if the transaction were structured as a sale instead of a license, because then they would be giving up all sort of rights that would be valued much higher than the $50 you forked over at Best Buy.
As for mutuality, it says right there on the box what you are getting. If you believe that you are getting more than the EULA allows, in direct contradiction to what that warning says, then that's a unilateral mistake and a unilateral mistake is not going to get you very far.
Not wanting the EULA to be binding is not the same as saying that it is. For a non-tangential precedent, see Tres Jeanee, Inc. v. Brolin Retail Systems Midwest, ___ F.3d ___ (W.D.Ky. 2007), in which the court, when faced with the validity of a EULA, looked at other jurisdictions and concluded:
a survey of cases from
other jurisdictions suggests that clickwrap agreements requiring the user to assent to their terms are generally upheld in the face of allegations of insufficient notice of terms.
The Seventh Circuit has explicitly upheld EULAs, where the sole issue in the case was the validity of a 'shrink wrap' license agreement where the terms were only a notice was on the outside of the box and the terms were inside. ProCD, Inc. v. Zeidenberg, , 86 F.3d 1447 (7th Cir. 1996). The court gives a good example in that one: warranties on consumer goods. By your argument (and that of the defendant in that case) no warranty would be valid because you didn't know the terms when you purchased the product. I would highly recommend reading the case, it's fairly clearly written. I'll leave you with one last quote, from the court's discussion of the Uniform Commercial Code (which has been adopted in most, if not all, states):
A vendor, as master of the offer, may invite acceptance by conduct, and may propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept by performing the acts the vendor proposes to treat as acceptance. And that is what happened. ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure.
If I flash a 20-page contract at you and you sign it in 30s, that can actually be grounds to void it.
No, actually, it's not -- in the absence of duress or some other factor. Ignorance is almost never an excuse under the law. If I don't read that 20-page contract, then that's my own fault. Same situation here: there is a warning on the box itself that installing and using the software is subject to agreement with the EULA. Just because it doesn't feel any different to buy that box at the cash register than it does to buy a gallon of milk has absolutely no relevance in the law.
The problem is that there is nothing 'hidden' or 'post-agreement.' When you pick up that box and take it up to the cash register, it says right on it that installing and using the software in it is subject to you agreeing to the EULA. If you don't know what the terms of that EULA are, then it's your fault for buying a pig in a poke -- the terms of a EULA are easy enough to find in advance on the vendor's website. Not reading and/or understanding all the ridiculously fine print on the box, and the fine print it references, isn't going to fly as an argument in court.
Don't believe me? Find a box of commercial software, and look for the disclaimer that looks like the surgeon-general warning on a pack of cigarettes. I guarantee you it is there.
Here's another example for you. While you're at the software store, look at some Norton Antivirus and MS Office boxes - you will probably find some that have multiple licenses (usually 3 I think for MS Office). There aren't three copies of the software in the box, just one. The difference is that you are 'allowed' to install it on three different computers. Also, large software sales are made by the 'seat' - if you're installing Windows on 500 computers, you don't buy 500 CDs, you buy that number of licenses.
I'm not saying it's right that you only ever buy a 'llicense' to software, not a 'copy.' But that doesn't change the reality.
Section 117 does not say anything about 'normal operation.' What it says is that a copy is allowed if it is an "essential step in the utilization of the computer program in conjunction with a machine." In other words, copying a program to RAM is making a copy, but making that copy is okay if it is done by the "owner of a copy" of the program. If it were not for the EULA/TOU, 117 would apply and there would be no violation of copyright. Running another program simultaneously (e.g., Glider) has nothing to do with a copy of WoW being allowed under section 117. However, "use of the software with Glider falls outside the scope of the license," therefore making a copy is not allowed.
All you bought were some CDs and manuals, the box for which has, if you look , a warning somewhere (in fine print naturally) that says something like: "The use of this product is subject to the terms of an End User License which you must accept before you install this product, and all use of the product is subject to the World of Warcraft Terms of Use which you must accept before you can register an account."
That's the actual language on the exterior of a WoW box I had here, in a white frame on the top of the box and printed in something like 4-point type. Pretty much any box of commercial software will have similar fine print. I don't the think the terms of a EULA should be blindly enforced the way they are, since they are 'take-it-or-leave-it' contracts of adhesion, but the fact is that courts do enforce EULAs.
Does it make sense in a common-sense sort of way that you can hold a physical copy of the software in your hands, and are able to copy it around however you want, but you still don't own it? Not really. But the fact is that all you 'own' is the limited permission to use that software under terms dictated by the seller. Because they put that warning there on the outside of the box, even though you practically need a microscope to read it, you can't even claim (in a legal sense) that you thought were 'buying' an actual 'copy' of the program within the meaning of ordinary language and 117 because a court presumes everyone reads and understands everything they agree to, whether or not they actually read it, understand it, or even know they are agreeing to it.
(I am a lawyer, but I don't specialize in IP issues.)
Because you do not own the game. If you did, that section would be relevant. Unfortunately, however, all you own is a license to use the game subject to all sorts of restrictions, therefore the cited section does not apply.
Odds are, you don't actually 'own' any commercial software that you think you do. Read a EULA sometime (if you can do so without gouging your eyeballs out): it consists entirely of you agreeing to dozens of restrictions on your use of the software in exchange for a limited right to use a copy of it.
The key word there is 'owner.' You don't 'own' a copy of World of Warcraft (or most any modern software), you merely own a license to use it subject to all kinds of restrictions. Like I mentioned, I don't believe EULAs should be strictly enforced the way they are - if you buy a program, you should receive ownership rights, not just a limited license to use it. If you did own your copy of a program, you could do almost anything you wanted to with it (other than copying, distributing, etc.) like you could with a book or CD. You don't own it, though, so you are only allowed to do what the owner says you can.
Yes. The EULA is a license that gives you permission to load it into RAM. If you violate the EULA, you don't have that permission, and therefore copying into RAM is not allowed.
I don't think the whole 'license' model for software should be considered valid, but given that it is, the court's decision makes sense. The submitter either doesn't know what he is talking about and/or is trying to make it sound as bad as possible (gasp!). The court didn't do anything crazy or new here.
You're misapprehending what the EULA is: by definition, it is a license to use the software (EULA = End User License Agreement). If you conform with the EULA, the 'copying into RAM' is allowed because you are doing it with permission. If you violate the EULA, the copying is not allowed and is therefore a violation of copyright.
I can't think of a very good analogy off the top of my head, but it's something like hiring someone to build a fence on your property. As long as they come on your property to build the fence, they're not trespassing. If they invite all their friends over and throw a wild kegger, they've exceeded the limited license you granted them and are now trespassing.
Not saying I agree with the court's decision -- in fact, I think allowing software companies to claim that you only purchase a 'license' as opposed to the software itself is a crock of shit -- but it does make sense if you look at it in the proper context.
Personally, I get at least as good stability, and usually better performance, running (supported) Windows apps using CrossoverOffice, the commercial version of Wine. The two main Windows apps I use are MS Word and World of Warcraft. Word seems more stable, and I get better fps in WoW, running in Linux rather than Windows.
There's a reason that the LotR series developed an enormous cult following, while most people have not ever even heard of the Gormenghast series. The actual writing, on a micro scale, is arguably far better in the latter, but the story is rather less engaging than a ten-year-old New York City phonebook -- and feels twice as long.
I'll take a storyteller with a good yarn to spin over a writer trying to impress me with language any day of the week.
I completely agree. In fact, for a certain percentage of people - those like you mention that have temper issues, or even those that may have some mental stability issues - I think the violent video games might send them over the edge and make them more likely to do violent acts. But while the game may be a cause, it's not to blame, any more than a strobe light would be to blame for causing seizures in an epileptic that sat and stared into it intentionally.
No matter what, there will be people that blame the dancing/books/D&D/movies/video games/etc., because it's easier to point at a scapegoat than it is to address the real problem, which is negligent parenting and/or mental illness. Not much that can be done about the parenting, unfortunately (forced sterilization probably woudln't fly), but that just means that we as a society need to work harder at detecting mental illness in children and provide them some help. A perfectly adjusted child doesn't simply decide one day to take a gun to school & start shooting just because he played a violent video game. There are warning signs, and a progression toward that end. It's too much to hope, but the focus needs to change from 'what can we blame' to 'what can we do to help.' Human nature being what it is, I doubt I'll see that in my lifetime.
It's one thing for the skills to translate to real life-- the whole point of America's Army, after all, is a combat simulator. So you learn some first aid, and you also learn some combat tactics.
The real question isn't whether the game gives you knowledge, but whether the game makes you more likely to do something you wouldn't do otherwise. Do you have more of an inclination to find people to bandage after doing it in game? Probably not, no more than you would be more inclined to shoot somebody.
If something breaks upon power-up, it HAS ALREADY failed
Not necessarily. The GP's point was that there are additional stresses on power up, which can cause wear and eventually failure. There are numerous reasons for already-existing failures to be 'exposed' on power up, as opposed to appearing to function normally if left running, but that's an entirely different issue.
Except, that is, fanatic 'true believers' who consider unbelievers to be inferior, and attempt to shout down any opposing views. I don't believe in god(s), but I despise smug, more-intellectual-than-thou atheists as much as I do in-your-face baptists, Jehovah's Witnesses, or whatever - and for the same reason. You can say that atheism isn't a formal religion all you want, but its devout adherents show most of the bad traits of followers of any religion.
Don't believe me? Try this: reread the FTA & the comments in this thread, except this time switch university for church, scientist for parishioner, etc. I bet you anything you'll still be on the side of the scientists, this time because they are going against the bigoted, small-minded church, instead of (as in the original) somehow defending the sanctity of a place of learning.
In any case, I think you're confusing atheism & agnosticism. Agnosticism is not believing anything that can't be proven, such as god. Atheism is the belief that there is no god, no supernatural, etc. The existence of god can't be disproved any more than it can be proved (and I'm not talking about disproving stories, I'm talking disproving the existence of an omnipotent, supernatural being). Therefore, to affirmatively believe that god does not exist involves faith in the same way as believing there is a god - even if atheism starts from a much more rational basis.
There is a subject, etc.: he just wrote it in the passive voice. When you remove the passive voice it's easier to tell. So, no, it's not just a sentence fragment. It is grammatically correct, just poor style.
I'd recommend Strunk & White's Elements of Style to both of you.
And they shouldn't. It's entirely a state issue. If a state allows it, the US SCT has held that it is constitutional if it's for 'urban development' or similar. If your state allows it, and you don't like it, take it up with the state government. There's not much the Congress (Repub OR Democrat) or White House can do about it if they don't like it (leaving aside the whole question of whether or not they should): as stretched as the commerce clause has been, real property is still one area where the federal government doesn't have much say.
Oh goody!! That way we'd only get the kind of art that the government wants us to have! That would be neato, considering the wonderful taste and broad-mindedness of the government.
Slashdot Mirror
They told me that if I voted for McCain, science would continue to be subverted in favor of religion and political expediency. And they were right!
I wish they'd enlightened us as to some of their 'subjective' reasons for their choices. The Northwest Arkansas metro area (Fayetteville, Springdale, Bentonville & Rogers) regularly makes the top ten of 'best places to live' lists. It's not New York, if that's your thing, but then they listed Boston & SF, too, so WTF?
I don't want to sound like a condescending ass, but I am a lawyer. (So I guess that makes me a condescending ass . . . ? Not exactly how I meant it, but sure sounds that way, & can't really argue.)
The '900-page' contract you mention would be unenforceable, but not because someone missed that clause. In every jurisdiction in the US there are four (depending on how they're broken down) requirements for a valid contract: competent parties, legal subject matter, mutual agreement, and valid consideration.
The first is easy - you can't hold a 6-year-old or insane person to their agreements. The second means that contracts for drugs or prostitution are not enforceable. The third means that the parties agree on what the contract is. And the fourth is that there has to be an exchange of something valuable - an agreement to give someone a gift is not enforceable (in most circumstances).
Totally aside from the fraud/misrepresentation issue of trying to trick someone out of their car, the contract you're talking about would be voidable for lack of consideration: it doesn't have to be equal, but you have to show that each side intended to give up something of value to them in exchange for what the other side was giving up.
You could argue a lack of consideration when you think you're getting an unencumbered piece of software, and the other side knows you're only getting a limited license, but you will run into all sorts of problems with that. First, the sofware vendor is going to be able to point out that everyone in the industry only sells licenses, and they'll be able to give examples of mammoth organizations like Wal-Mart or the U.S. government purchasing software on a per-seat license basis. Second, they're going to argue that there would be a failure of consideration if the transaction were structured as a sale instead of a license, because then they would be giving up all sort of rights that would be valued much higher than the $50 you forked over at Best Buy.
As for mutuality, it says right there on the box what you are getting. If you believe that you are getting more than the EULA allows, in direct contradiction to what that warning says, then that's a unilateral mistake and a unilateral mistake is not going to get you very far.
Not wanting the EULA to be binding is not the same as saying that it is. For a non-tangential precedent, see Tres Jeanee, Inc. v. Brolin Retail Systems Midwest, ___ F.3d ___ (W.D.Ky. 2007), in which the court, when faced with the validity of a EULA, looked at other jurisdictions and concluded:
The Seventh Circuit has explicitly upheld EULAs, where the sole issue in the case was the validity of a 'shrink wrap' license agreement where the terms were only a notice was on the outside of the box and the terms were inside. ProCD, Inc. v. Zeidenberg, , 86 F.3d 1447 (7th Cir. 1996). The court gives a good example in that one: warranties on consumer goods. By your argument (and that of the defendant in that case) no warranty would be valid because you didn't know the terms when you purchased the product. I would highly recommend reading the case, it's fairly clearly written. I'll leave you with one last quote, from the court's discussion of the Uniform Commercial Code (which has been adopted in most, if not all, states):
No, actually, it's not -- in the absence of duress or some other factor. Ignorance is almost never an excuse under the law. If I don't read that 20-page contract, then that's my own fault. Same situation here: there is a warning on the box itself that installing and using the software is subject to agreement with the EULA. Just because it doesn't feel any different to buy that box at the cash register than it does to buy a gallon of milk has absolutely no relevance in the law.
The problem is that there is nothing 'hidden' or 'post-agreement.' When you pick up that box and take it up to the cash register, it says right on it that installing and using the software in it is subject to you agreeing to the EULA. If you don't know what the terms of that EULA are, then it's your fault for buying a pig in a poke -- the terms of a EULA are easy enough to find in advance on the vendor's website. Not reading and/or understanding all the ridiculously fine print on the box, and the fine print it references, isn't going to fly as an argument in court.
Don't believe me? Find a box of commercial software, and look for the disclaimer that looks like the surgeon-general warning on a pack of cigarettes. I guarantee you it is there.
Here's another example for you. While you're at the software store, look at some Norton Antivirus and MS Office boxes - you will probably find some that have multiple licenses (usually 3 I think for MS Office). There aren't three copies of the software in the box, just one. The difference is that you are 'allowed' to install it on three different computers. Also, large software sales are made by the 'seat' - if you're installing Windows on 500 computers, you don't buy 500 CDs, you buy that number of licenses.
I'm not saying it's right that you only ever buy a 'llicense' to software, not a 'copy.' But that doesn't change the reality.
Section 117 does not say anything about 'normal operation.' What it says is that a copy is allowed if it is an "essential step in the utilization of the computer program in conjunction with a machine." In other words, copying a program to RAM is making a copy, but making that copy is okay if it is done by the "owner of a copy" of the program. If it were not for the EULA/TOU, 117 would apply and there would be no violation of copyright. Running another program simultaneously (e.g., Glider) has nothing to do with a copy of WoW being allowed under section 117. However, "use of the software with Glider falls outside the scope of the license," therefore making a copy is not allowed.
All you bought were some CDs and manuals, the box for which has, if you look , a warning somewhere (in fine print naturally) that says something like: "The use of this product is subject to the terms of an End User License which you must accept before you install this product, and all use of the product is subject to the World of Warcraft Terms of Use which you must accept before you can register an account."
That's the actual language on the exterior of a WoW box I had here, in a white frame on the top of the box and printed in something like 4-point type. Pretty much any box of commercial software will have similar fine print. I don't the think the terms of a EULA should be blindly enforced the way they are, since they are 'take-it-or-leave-it' contracts of adhesion, but the fact is that courts do enforce EULAs.
Does it make sense in a common-sense sort of way that you can hold a physical copy of the software in your hands, and are able to copy it around however you want, but you still don't own it? Not really. But the fact is that all you 'own' is the limited permission to use that software under terms dictated by the seller. Because they put that warning there on the outside of the box, even though you practically need a microscope to read it, you can't even claim (in a legal sense) that you thought were 'buying' an actual 'copy' of the program within the meaning of ordinary language and 117 because a court presumes everyone reads and understands everything they agree to, whether or not they actually read it, understand it, or even know they are agreeing to it.
(I am a lawyer, but I don't specialize in IP issues.)
Because you do not own the game. If you did, that section would be relevant. Unfortunately, however, all you own is a license to use the game subject to all sorts of restrictions, therefore the cited section does not apply.
Odds are, you don't actually 'own' any commercial software that you think you do. Read a EULA sometime (if you can do so without gouging your eyeballs out): it consists entirely of you agreeing to dozens of restrictions on your use of the software in exchange for a limited right to use a copy of it.
The key word there is 'owner.' You don't 'own' a copy of World of Warcraft (or most any modern software), you merely own a license to use it subject to all kinds of restrictions. Like I mentioned, I don't believe EULAs should be strictly enforced the way they are - if you buy a program, you should receive ownership rights, not just a limited license to use it. If you did own your copy of a program, you could do almost anything you wanted to with it (other than copying, distributing, etc.) like you could with a book or CD. You don't own it, though, so you are only allowed to do what the owner says you can.
Yes. The EULA is a license that gives you permission to load it into RAM. If you violate the EULA, you don't have that permission, and therefore copying into RAM is not allowed.
I don't think the whole 'license' model for software should be considered valid, but given that it is, the court's decision makes sense. The submitter either doesn't know what he is talking about and/or is trying to make it sound as bad as possible (gasp!). The court didn't do anything crazy or new here.
You're misapprehending what the EULA is: by definition, it is a license to use the software (EULA = End User License Agreement). If you conform with the EULA, the 'copying into RAM' is allowed because you are doing it with permission. If you violate the EULA, the copying is not allowed and is therefore a violation of copyright.
I can't think of a very good analogy off the top of my head, but it's something like hiring someone to build a fence on your property. As long as they come on your property to build the fence, they're not trespassing. If they invite all their friends over and throw a wild kegger, they've exceeded the limited license you granted them and are now trespassing.
Not saying I agree with the court's decision -- in fact, I think allowing software companies to claim that you only purchase a 'license' as opposed to the software itself is a crock of shit -- but it does make sense if you look at it in the proper context.
Because, you know, 20 or more 100x7 meter tubes would have absolutely no conceivable effect on marine wildlife in the area.
Personally, I get at least as good stability, and usually better performance, running (supported) Windows apps using CrossoverOffice, the commercial version of Wine. The two main Windows apps I use are MS Word and World of Warcraft. Word seems more stable, and I get better fps in WoW, running in Linux rather than Windows.
There's a reason that the LotR series developed an enormous cult following, while most people have not ever even heard of the Gormenghast series. The actual writing, on a micro scale, is arguably far better in the latter, but the story is rather less engaging than a ten-year-old New York City phonebook -- and feels twice as long. I'll take a storyteller with a good yarn to spin over a writer trying to impress me with language any day of the week.
I completely agree. In fact, for a certain percentage of people - those like you mention that have temper issues, or even those that may have some mental stability issues - I think the violent video games might send them over the edge and make them more likely to do violent acts. But while the game may be a cause, it's not to blame, any more than a strobe light would be to blame for causing seizures in an epileptic that sat and stared into it intentionally.
No matter what, there will be people that blame the dancing/books/D&D/movies/video games/etc., because it's easier to point at a scapegoat than it is to address the real problem, which is negligent parenting and/or mental illness. Not much that can be done about the parenting, unfortunately (forced sterilization probably woudln't fly), but that just means that we as a society need to work harder at detecting mental illness in children and provide them some help. A perfectly adjusted child doesn't simply decide one day to take a gun to school & start shooting just because he played a violent video game. There are warning signs, and a progression toward that end. It's too much to hope, but the focus needs to change from 'what can we blame' to 'what can we do to help.' Human nature being what it is, I doubt I'll see that in my lifetime.
It's one thing for the skills to translate to real life-- the whole point of America's Army, after all, is a combat simulator. So you learn some first aid, and you also learn some combat tactics.
The real question isn't whether the game gives you knowledge, but whether the game makes you more likely to do something you wouldn't do otherwise. Do you have more of an inclination to find people to bandage after doing it in game? Probably not, no more than you would be more inclined to shoot somebody.
Not necessarily. The GP's point was that there are additional stresses on power up, which can cause wear and eventually failure. There are numerous reasons for already-existing failures to be 'exposed' on power up, as opposed to appearing to function normally if left running, but that's an entirely different issue.
Except, that is, fanatic 'true believers' who consider unbelievers to be inferior, and attempt to shout down any opposing views. I don't believe in god(s), but I despise smug, more-intellectual-than-thou atheists as much as I do in-your-face baptists, Jehovah's Witnesses, or whatever - and for the same reason. You can say that atheism isn't a formal religion all you want, but its devout adherents show most of the bad traits of followers of any religion.
Don't believe me? Try this: reread the FTA & the comments in this thread, except this time switch university for church, scientist for parishioner, etc. I bet you anything you'll still be on the side of the scientists, this time because they are going against the bigoted, small-minded church, instead of (as in the original) somehow defending the sanctity of a place of learning.
In any case, I think you're confusing atheism & agnosticism. Agnosticism is not believing anything that can't be proven, such as god. Atheism is the belief that there is no god, no supernatural, etc. The existence of god can't be disproved any more than it can be proved (and I'm not talking about disproving stories, I'm talking disproving the existence of an omnipotent, supernatural being). Therefore, to affirmatively believe that god does not exist involves faith in the same way as believing there is a god - even if atheism starts from a much more rational basis.
He does. Well, I don't know if he actually pays them royalties, but he does get prior permission from the copyright holder.
"Human execution corrupted a good idea."
There is a subject, etc.: he just wrote it in the passive voice. When you remove the passive voice it's easier to tell. So, no, it's not just a sentence fragment. It is grammatically correct, just poor style.
I'd recommend Strunk & White's Elements of Style to both of you.
I prefer the Actalizzard, myself.
And they shouldn't. It's entirely a state issue. If a state allows it, the US SCT has held that it is constitutional if it's for 'urban development' or similar. If your state allows it, and you don't like it, take it up with the state government. There's not much the Congress (Repub OR Democrat) or White House can do about it if they don't like it (leaving aside the whole question of whether or not they should): as stretched as the commerce clause has been, real property is still one area where the federal government doesn't have much say.
How is it unconstitutional? Not saying it isn't, just curious why you think that.
Oh goody!! That way we'd only get the kind of art that the government wants us to have! That would be neato, considering the wonderful taste and broad-mindedness of the government.
It's a statute. If it says the DoJ has standing, then it has standing. Unfortunately, it doesn't have to make sense.