Problem in that they never established MDY as a customer of Blizzard at all. In order to make this logic stick that he was contributing to infringement, they had to assume that *every* Blizzard customer that bought Glider was already bound by the EULA. As merchants they arguably would be, as consumers they would not be.

Umm - actually here you are wrong, as a matter of law. You *own* the copy, and you receive as a matter of law the right to use the software on it as required for regular use and archiving.

What the judge said is not that Blizzard still owns their software. According to this ruling - Blizzard still owns the physical CD the software came on.

You really should read the thread before jumping in - this has all been gone over.

Umm - NO, it's not. There are very specific provisions about what makes a binding sales contract - all with links to the specific definitions of merchant, consumer, and where it says that consumers are not bound to contracts simply by being notified that there is an EULA.

Honest to god, I'm going to end all my messages with a .sig that says anyone that thinks EULA are binding owes me a quarter for the privilege of reading my posts By posting after me in a thread you acknowledge you have read my post. It's just as binding and has as much consideration involved.


The problem here is that the DMCA specifically allows for reverse engineering programs for purposes of compatibility. He was allowed to do this.

Why you would cheer that a cheat provider was plugged in a way that is going to end up biting you in the arse like this is beyond me, but you appear to have plenty of company.

Jonnan

So you're saying MDY was able to reverse engineer parts of WoW to make Glider, test it, and continue to revise it as Blizzard changed detection capabilities - all without using a single copy of WoW. Damn, that guy is a good programmer.

In reality, MDY got multiple accounts banned in these efforts, and they admitted so in their depositions. This bit of information simply didn't get mentioned explicitly in the ruling.



That's fine, as long as you have warnings in the topic title, have a full text agreement we actively have to agree to before we see your content, and collect information on each reader for enforcement and billing purposes.

That, and generally the website owner holds the rights to user posts. There are exceptions, but they are rare.



They have him on the hook for that as well. Namely, Tortious Interference with Contract. Even Jonnan will admit the Terms of Use establishes a valid contract, exchanging the player's agreement to Blizzard's rules for access to their servers (as compared to the EULA, which adresses the player's access to the contents of the disc/their own hard drive). The damages for the contract interference alone are likely to bankrupt MDY, but not Donnelly himself, as MDY is a limited liability company.

What confuses me is why Blizzard did not pursue criminal charges. Certainly any Glider user who got banned and bought another copy to continue using Glider committed fraud (entering a contract with the intent to break it). While this obviously couldn't apply to every Glider copy sold, even 10-15k counts of fraud and conspiracy to commit fraud would end Donnelly's career rather permanently.



This would depend on how you define "independently created computer program". Given how intregral the WoW program was to the development of the Glider program, this is not obvious. Ironically, this defense WOULD be allowable if a third party were to alter the Glider program to make it compatable with other MMOs.

The reverse engineering allowances were emplaced to shield people who make wider programs, such as game companies when they insure interoperability of their program with various operating systems and/or component drivers.

The part of the DMCA Blizzard claimed was violated was the provisions against selling technology to circumvent program access restrictions. Since the entire WoW program could theoretically be read bit-by-bit off of a hard drive, the Glider program doesn't qualify.

What I find truly ironic is that MDY didn't sell the Glider program, they licensed it under its own EULA! And had a pretty draconian phone-home DRM scheme added onto it, as well.

I'm saying, under the rules set forth under the DMCA, reverse engineering a program for the purposes of compatibility is *expressly* allowed. You, me and MDY, are *all* allowed to reverse engineer someone else's program for the purposes of ensuring compatibility.

Note that this was one of the summary judgments he, ah, won.



And I don't intend to attempt to hold anyone that believes you need those things for an EULA to be effective to my EULA. Only those of you that seem to think that it is a perfectly sane interpretation of the law that having a warning on a box that there *is* an EULA should render that EULA binding, sight unseen, upon buying a product.

That *is* what y'all have been fighting so hard to make sound reasonable at the end of the day. So, just be aware, I have an EULA attached to my posts. Reading or Responding to my posts indicates acceptance of that EULA. I will tell you what that EULA entails when I feel like it.

Sure it's stupid and crazy, but no sillier than arguing that putting a license agreement 'warning' on a box renders it binding.



The TOS may have been binding - being a separate contract, and having monies change hands during that contract, it's more like one of those utilities contracts - arguably it's a separate contract every month, and buy continuing service with the Utility, Bank, Credit Card Company, et al, you are indicating acceptance of any changes they make in the contract from month to month.

So interference with contract is a valid argument - there are still valid issues with enforcing it - for instance, if the Terms of Service stated that Blizzard owned the CD (physically), then then terms of service was exchanging a service (access to the WoW server) for monies (your monthly bill) and other consideration (ownership of the CD). UCC 2 contracts are typically balanced towards money, ina nd of itself, being the consideration on one side - Some courts have held that once you're dealing with money and other considerations, you're back out of merchant contract land and into UCC 1 territory again.

But there's been variation on that, and case law varies. In any case, although I think Blizzard has a valid claim for interference in a contract, it's an entirely civil matter - it's not a crime at all. And the fraud is entirely on the Blizzard customer base - interference with contract is all that they could throw at MDY.



Umm - the legislative history doesn't back you up on that - Driver compatibility was one of many things that were discussed when they setup the reverse engineering exception. They were pretty definite that what they *didn't* want was to legalize reverse engineering things like logon protection schemes for breaking into bank accounts, those kind of security issues.

But at the end of the day, that was never what Glider did - people used the valid logon to access the WoW server - Glider simply piped information into the io stream that sent commands from the keyboard to the WOW client.

Jonnan

OK...12 pages on and have we any results/conclusions?

 

.....other than Jonnan001's decidedly shinier fingertips?...;)

 

The fun part is none of this will change anything, other than making someone's dull day a little less...;)

cheats cant be illegal on other pc games...
the game makers put them in
sins doesnt have any though

Meh - if I can get a few gamers to realize they not only have rights, but that you can actually prove it in a court of law, I will name the calluses on my index fingers in honor of Willythemailman and consider it time well spent -

Good luck, people seem all to willing to give up their rights now and it extends well beyond games and copyright.

I'm just not willing to demand 'rights' that some believe to be 'mine' when they adversely impact on the rights of others.

Copyright, TOU, EULA, et al is to protect the owner.

Purchasers/users can vote with their feet if they feel the owners' rights fuck them over and simply avoid it/them.

That's this whole issue in a nutshell.

If Blizzard wants your balls if you do not abide by whatever rules they apply...then they should be entitled to them.

They will never get mine...as I will either abide by their rules...or not purchase the game.

If you'll reread the decision, the count of DCMA violation involved traffic in illegal decryption technology, not reverse engineering. MDY correctly won that ruling, as the entire game is contained on the disc. If even one file necessary to run the game had been hosted on the servers the result would be different, because Glider would be circumventing Blizzard's access controls. As it is, the entire game could be read directly off a hard drive without running the game.

In this regard Glider violated the intent of the law, but not the letter.





Well then I'm fine, aren't I? The EULA isn't binding at the moment of purchase, it's binding when you agree to it during installation. Otherwise they couldn't rightly call it an End User Lisencing Agreement, now could they? Enforcement from purchase would be silly, as there's no guarrantee the person who paid for the box is even going to BE the end user, is there? What happens if someone buys it for someone else?

Have you ever had a golden Google moment? I was trying to come up with the 6th Circuit decision that declared shrinkwrap agreements invalid (simply opening the package bound the consumer) but allowed clickwrap (notice outside the box, full terms within/online). Instead, I get the 7the Circuit case of Procd, Inc. v. Zeidenberg, which you can read in full here. In the written decision, the judge(s) not only reverse but mock the district court's decision to rule the EULA nonbinding. One of the pertinent parts:



Due to the preceding part's length, I'll sumarize the rest of my answer to Jonnan. If you read the MDY case again, breach of civil contract isn't a possibility, it was the basis of MDY's defense!



And I agreed with you on the RE for compatability for things like drivers. No, wait I didn't, I said it first and you disagreed with me, then stated your position as exactly what mine was.



I realize I have rights. What we don't agree on is whether game companies have rights, and how those two conflicting sets of rights interact. And as for proving it in court, see the Zeidenber case I cited.

The name's Willythemailboy, thank you very much. Apparently no one's realized where it comes from, or the mindset it implies. It is a pretty obscure reference.

Hah! From just before I became a regular Dilbert reader. But how the heck would you describe a Dilbert mindset? To me, the strip is some sort of powernerd cross between Cathy at the office and Pogo on heavy psychedelics.

Well then we can all be glad that you have no influence or bearing on what is legal in a contract and what isn't.

I'd check the gold in that Google - that appears to be pyrite.


Again:
§ 2-104. Definitions: "Merchant"; "Between Merchants"; "Financing Agency".
(1) "Merchant" means a person that deals in goods of the kind . . .
Resell = dealing in goods = Merchant.

§ 2-209. Modification, Rescission and Waiver
(2) An agreement in a signed record which excludes modification or rescission except by a signed record may not be otherwise modified or rescinded, but except as between merchants such a requirement in a form supplied by the merchant must be separately signed by the other party.

Lets say it again - a merchant can be bound by terms he didn't see, a consumer can't be bound without signing something (Or an electronic Equivalent).

Jonnan

I find this to be such an odd statement - you say you either will not purchase the game or you'll abide by their rules . . . when the whole point of this argument is that you don't know their rules when you purchase their software?

Sorry Jafo, but you're argument depends on two possibilities - either
A) You deeply trust that no software provider would ever include a term in their license that, had you been aware of it, you wouldn't have bought the product, or
Oh . . . My . . . God . . .

Jafo has discovered that extraordinary psychic ability . . .

Claircovenance, the ability to read contracts from any distance, through any substance!

Jafo is a . . . ParaPsychicLegal at Law!!!!!!!

Faster than a process server, more powerful than a bailiff, able to arrange Bail for crimes you didn't even know you were going to commit . . . Jafo's psychic ability to be aware of legal wording in documents he hasn't seen allows him to leap tall bureaucracies in a single bound, punch through red tape with the force of ten civil rights lawyers, and validate parking anywhere in Australia and parts of New Zealand!

It makes so much *sense* now! It's the only explanation - Really, what's more likely? That Jafo and WillytheMailMan are psychics, or that there are still people around that believe corporations are wonderful entities that would never abuse the legal advantage of being able to hold people to a contract they've never seen?

I mean - That's just crazy talk - {G}.

Jonnan

Brilliant.

As it has been repeadtily said, the link to the WoW eula is shown on the box so you can read them before you purchase.
Also any mmorpg is very likely to have a kind of HP where you can create your account and read any agrrement you need to make before you purchase.

And if its not an mmorpg...well, that would be off topic now.

So its your post which is very odd and does not make any sense at all.

First of all - I've just gone through 12 pages of thread looking for even one reference to any link on the box and failed to find it so frankly you're going to have to back that up - although I hardly think that would be sufficient "Oh, we have a contract, and you can see it too - you just have to write down this information, drive home thirty miles, pull it up on the web, read through it, consult a lawyer, drive back to the store, buy our product, drive back home, install it, verify the the EULA we have here matches what was on the website, accept it, and play! Just the kind of simple covenant so very implied by the term 'Undue Burden' in the UCC!" Excuse me, but would you accept that from your Bank or Mortgage company? They must LOOOOOOOOOOOOOOOOVE you!

Second of all - since there has been no argument that the EULA's we're talking about would only be feasible because of this presumed link to an online EULA or a TOS agreement (Well, actually *I* made some arguments regarding the separateness of the TOS, but I don't think anyone else has), indeed the supporters of this have been quite clear that these EULA's apply to *all* software including one, that point is kinda irrelevant.

Thirdly - again, since I haven't seen any post implying that this was in these or any other way limited to the EULA of MMORPG's, why in the world would any of this render it offtopic?

Sooo - I'm not seeing your point?

http://www.worldofwarcraft.com/legal/eula.html

Took all of 4 seconds to find it by typing in "WOW eula agreement" to the address bar in firefox.

Not to mention its listed on the box, as I had said earlier in the thread.

Also the TOS link is contained within the EULA page. http://www.worldofwarcraft.com/legal/termsofuse.shtml

Since you refused to spend the initial 4 seconds to look up the EULA. heres the link to the TOS as well.


The information is there and available with little to no effort.

Any argument  of " there was no reference to it on the box is moot. As It has been established it was there. I have the game, i see the print on the side of it. As for the argument even if it wasn't there?. It falls under common knowledge. 99% or better of gamers know all new games come with an EULA, so to say "if theres no warning of one on the box then I had no idea it had one". Is about as strong of an argument that, buying a gun from a pawn shop should come with a warning not to shoot your self in the foot.

Its common knowledge and common sense.

The mindset is not from the comic, but the use of the character. Willy only appears in a few strips. Dilbert is trying to get something from some officious, obstructionist ass. When he asks what he needs to do to get whatever it was he was asking for, the reply was "BRING ME THE HEAD OF WILLY THE MAIL BOY!"

Needless to say, the mindset of someone calling themselves Willy is that they feel like the enemies you have to kill so many of to get some meaningless quest item in a game. The day I claimed that name was not a particularly high self-esteeem day, lo those many years ago. The name just stuck after that.

Re: post 288



Zeidenberg would have been considered a consumer, not a merchant (that is, if anyone had brought up the topic). At the time of the first purchase, he had not yet formed the corporation to resell the information.

And as I said previously, the EULA is not binding on purchase, but on installation. There is no reason to assume the person paying for the box is going to be the one playing the game. And when you install, you DO electronically sign the EULA.



You apparently didn't look very hard, then. Part of post #240 (by me, of course):

"The use of this software product is subject to the terms of an End User License Agreement available at http://www.worldofwarcraft.com/legal/eula.html, 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. Requires subscrition to play. Internet connection required. Additional online fees and subscription fees may apply, and player is responsible for all applicable Internet and subscription fees."



I have agreed with that. The EULA is entirely separate from the TOS. You need to agree to the EULA in order to install the program, and the TOS agreement is necessary to create an account and use their servers. In that way, the EULA is a necessary precondition of the TOS, but that's the limit of their connection.

The statement was "As it has been repeadtily said" - which in many places would be commonly assumed to imply "Recently, in this thread" - not, mayhap, in another conversation, someplace else, in an alternate universe.

I assumed he hadn't been lying about it being on the web or that the URL for that website was on the box. I said

A) after searching with several search terms for 'link', 'box', etcetera I saw no evidence of this being repeatedly said. Willy has been kind enough to reference the fact that it was is fact brought up once, by him, in Post #240 - Thank you sir. That said - 1/291 or aprox 0.3436% of posts referenced this fact.

Neither that post nor any other including the post that brought up how it had been repeatedly mentioned, has posited that this fact would make a whit of difference regarding whether they would consider this EULA binding. UCC 2 establishes some things quite clearly, one of which is that contracts between merchants and consumers have specific standards as to what makes it a valid contract.

I've only posted the relevant paragraph, clearly linked twenty or thirty times, so hey, what the heck I'll post the darn thing again, although I'm not entirely sure why I can have four people post about something mentioned once and never used in a cogent argument establishes my incompetence, but the people that haven't read the UCC all the way through after the last twenty posts are considered to be on the ball.

But here we fricking go again!




Once again - you made a sale contract when you bought the box.

*either*
A) The EULA is a modification to a sales contract, in which case it is only enforceable for a consumer if you knew and signed for those terms at the time of the sale.

or
as Willy *says* he accepts, the EULA is a separate contract, in which case the waiver in 2-209 regarding consideration does not apply. In fact, since you're not buying anything, it doesn't even qualify for the easy standards of UCC 2 Uniform Commercial Code-Sales, you're back into full contract law territory.

And for the EULA to be valid as a separate contract, under *either* UCC2 *or* regular contract law, both sides have to receive consideration - They have to get something from it and I have to get something from it.

Now, as an owner of the disk (Not the Intellectual Property of the software, but the legitimate owner of that physical copy) I have the right under U.S. law to use that software for normal use. What the heck I'll post that too:


So, if I own that copy until I sign the EULA, then I have the right to use those programs. Right until the EULA that takes my ownership of those copies away, which it could do as a valid contract.

Except - I have to get something in return for it to be a valid contract - both sides have to get consideration, a 'contract' where only one side gets anything is not actually a contract. So - what do I get from the EULA? The right to copy/install the software? No - I already had that right under § 117 of the copyright act.

The EULA does not give me *anything* in return for the rights it takes away.

So if the EULA is a modification to the sales contract, it fails completely to meet the standards for a consumer, and I have strong reservations regarding whether it would be valid between merchants (Saying you don't own the physical copy of the software is *not* a standard term in EULA's, which would put it out of the realms of even 'between merchants' sales, but that's an entirely different argument.) , but that depends on specific circumstances and the exact terms.

If it's a separate contract, then it fails worse - because I have to actually *get* something out of it for it to qualify.

This has been posted before - the wording is not some terribly esoteric latin derivative going back to Ancient Rome here. Copyright law gives you the right to use that disk.

Contract law has provisions for taking away that right, provided that you were made aware and legally acknowledged those terms when you bought it (if done as a modification to the sales contract), or for exchanging those rights for other consideration (if it's a separate contract).

But neither of those interpretations apply here. As a consumer, I can't agree to terms I haven't had explained to me, as a separate contract, the software company has to give me a pony when I sign for it.

People keep complaining that my posts go on forever - if people actually read through them, I wouldn't have to post the same thing over and over.

Jonnan

*Sigh* And I'm *sure* the reason that the argument that he was a consumer was never made had to do with my not understanding the difference between consumer and merchant and sales law.





After, specialized database software of the type he bought is *typically* bought for home and personal use by people with no experience whatsoever in the field. There's no chance whatsoever that someone who bought this software and then formed a company to write a new type of software to use that data he bought would be considered to have "knowledge or skill peculiar to the practices or goods involved in the transaction".

Yeah - that's probably it Willy.

Good Lord.

Jonnan

Considering there is a separate product for commercial use and he bought the version marketed specifically to the personal use consumers whose existence you deride, yeah, I think he could have been considered a consumer.

And no, I accepted that the EULA is separate from the TOS, not that the EULA is separate from the sale. Let's hear the 7th Circuit's view on that, please:





I'm sorry if the Zeidenberg decision contradicts your reading of the UCC, but it's 12 years old now and was never overturned. Maybe the 7th circuit was just as wrong as the 9th circuit, but most likely the problem lies with you.



That tidbit from the Zeidenberg case explains my opinion of your false merchant/consumer dichotomy exactly. In terms on enforcability, EULAs must be equally legal or equally illegal.

Which is exactly why idiots shouldn't be allowed to be judges.

A judge is supposed to rule on the law, not pad the pockets of an asshole software vendor because he feels like it. They exist specifically to protect us from practices like EULA's. A judge ruling that a hidden contract is legal is simply more evidence that we need to round a lot of them up and shoot them.

Since you're stuck on the accepting bit.

I have never accepted an EULA in my life. I click agree knowing full well that they are illegal and violate my rights when they include restrictions. You cannot be forced to accept an illegal contract, it's null and void whether you click one radio button or the other. When I click that button, I already own the product, that EULA is just another part of my property.

Well, to some extend I agree. I read most of the ongoing discussion and would like to add this much: Copyrightlaw is subject to the respective country. How and to what extend a product is protected by it, depends soley on the law-system of the country you live in. I only may evaluate the aspects of the german law in this case. The EULA, as quoted above, is indeed not part of the contract itself. In germany we split a buyingcontract into two parts. First the part where you oblige yourselfe in taking the good and paying the price and the second where you actually TAKE the good. The EULA would be element of the first part - since the EULA is somewhere stored away on the DVD or as printed flyer in the box, it can't be part of that very contract. Hence the whole EULA issue is - at least in germany - a long shot in regards as a basis for a civil law case.

The initial question of this thread was if cheating is illegal. Form the aspects of civil law it is not - until and unless you breach the contract - which we can, in this case, deny so far. On the other hand CHEATING in a game like WOW states part of the physical elements of fraud, since the account values of the WOW accounts are tremendous (I heard of ppl selling these on the internet for loads of "real" cash). So when you cheat your way up to a higher level hence enhancing the economical value of your account, you are at least in danger of attempting a fraud (for which you actually must try and "cash in" your account).

According to german (and actually international) law the decision of the judge goes against a fundamental law figure - the prohibition on analogies. Cheating is NOT analogue to COPYRIGHT infringement. The consequences of this ruling are as simple as they are dangerous: the undermining of the prohibition on analogies. This is - no matter in which part of the world you live - a significant abridgement of legal certainty.

 

The Topic "Game Cheats are Illegal" is a bit misleading. Blizzard did not sue the cheaters (they simply get banned when caught for a good reason) but the one who made a bot program and sold it (without money to get they would not sue anyone).

Blizzards argument: It circumiats Warden. (And so violating the "Digital Millennium Copyright Act")

The Judge's argument: The program makes illegal copies of WoW, since they are not needed to run WoW alone.

This has rather little to do with eulas and endusers.
And btw, the eulas does not take rights from you. It states which rights you do not get in the first place.