Huh - how strange - I could sworn I went into this entire conversation arguing that the UCC 2 prevented exactly that interpretation. I was granting that premise as an argument showing how overreaching the entire premise was.

If this is news to you, you are hardly the literate reader you think you are.

WOW! WHAT A CONCESSION!

After taking my money, stealing back the title to the CD I bought with that money, the license generously allows both myself *and* the software manufacturer to terminate the license, while they keep my money and retain title to my CD!

I can see entirely why you would consider that to be a perfectly obvious balance to their ability to use that license to make any action they choose to functionally illegal.

"I'll grant that the consequences of license termination are considerably harsher for the consumer than they are Blizzard" and "Blizzard is vulnerable to far greater damages, as we can clearly see in this case."??????

You grant that there are greater consequences to the weaker party, but the stronger party has more damages?

Neat theory - we consider damages to each individual customer as individual issues, but we consider damage to the software company as a theoretical aggregate. Why bother with the simple illogic of weighing apples and oranges when I can keep a bushel of oranges on one side of the scales, and weigh the apples individually on the other side of the side. Great Plan.

Sorry, ah - No. It's dishonest to even try and add them that way Willy. Which has been par for the course in your arguments sadly.

Individually, no, the risks are piled on the consumer. The consumer is the one who pays blizzard money for a CD, and then has the title to that CD stolen back from him in return for installing a program he was already allowed to install, by a EULA written by highly paid contract lawyers.

Blizzard and the consumer can both kill the license.

Whoop - fucking -eee! Money changed hands, and Blizzard still has it.

So the 'risk' under this agreement is that Blizzard either gets their money, and gets to exercise absolute control over the otherwise legal actions of the licensee, or that Blizzard gets' their money, the license is canceled, and they don't get to exercise absolute control over the otherwise legal actions of the licensee.

Or, we don't grant that right, and it would turn out that Blizzard get's their money, and that allows them to sell their product . . . but not control my computer.

For some reason, Willy and bodyless deeply believe that that last paragraph indicates something deeply and dramatically unfair for software companies. 15 pages on, and I have yet to hear *why* they feel holding buying a computer game to the same standards as buying a board game is unfair, but they're determined this is unfair.

Jonnan

Screw it, Jafo, I'm going to be bad again. Do whatever floats your boat.

A way out. What the hell is wrong with you? Not even EA would attempt such a bullshit argument, and they're claiming that 3 activation limits and requiring internet access are for our benefit. Equal footing with their customers by giving them the same ability to get rid of their customers purchase as their customer has? Are you a fucking crack head? I've talked to drug addled mental cases drinking themselves into a stupor that have more sense than that. It's not even preposterous, it's something only a cunt punting asshole would say just to piss people off. You even think it's a standard practice that all EULA's have? I thought you said you knew what you were signing off on? What the hell is wrong with you? Not even EA would attempt such a bullshit argument, and they're claiming that 3 activation limits and requiring internet access on single player games are features for our benefit.

Slightly less fucking stupid shit continued...



Question, what the hell do you want me to do Blizzards job for? If Blizzard has an actual case against MDY, and not some fictitious load of horse shit like the case they brought, then Blizzard is the one that has to try and prove it. If Glider violates copyright in a non magical fairy kingdom way, then Blizzard needs to claim such, and have it verified or disproved in court. I'm not against Blizzard taking MDY to the cleaners for breaking the law, or infringing on copyright. I'm against bullshit being invented by assfucker judges to implement wishful thinking.



...

How to explain this so a retarded fuck five year old with Down's syndrome that was dropped down a flight of stairs could get it...

Ok, I'm drawing a blank on that one, new tact. Since you're obviously fucking stoned, maybe this will make more sense.

We're all drug dealers. A supplier decides he wants to sell all the drugs himself, and hires a bunch of crack heads to kill all the dealers. When he's done, one of the drug dealers is still alive because he killed all the crack heads that were sent after him. He's now the only fucking dealer.

I swear Willy, you're the dumbest shit I've ever seen.

Bodyless, this isn't some theoretical maybe. They have their own list of games they've already turned into coasters in the last couple years. What you believe is irrelevant, they publish the information themselves. It's fact. If you really want to fuck yourself in the ass, continue being oblivious.

Cobra, copyright has nothing to do with licenses. Ignore reality all you want, but they are entirely separate. Books, music, movies, anything with an instruction manual, informational brochure, parts catalog, even just information on the packaging, contains copyrighted material. None come with EULA's. Your point is about as valid as the size of your pecker.

It only renders copying the software as illegal.



Actually, copyright law has fair use restrictions.



Blizzard is being nice by offering you a license in the first place. They don't have to hand out a license. Problem is, the license is what is allowing you to copy the product to your hard drive or memory. Otherwise, all you can really do is to look at the nice pretty CD.

UCC 2 applies to the physical CD, and that's fine. UCC 2 does not apply, however, to the information on the CD. Copyright law covers the information stored on the CD.



UCC 2 is fine, but it doesn't override copyright law. Copyright law still applies.



The CD costs pennies to create. The vast majority of your payment is for the software on the CD, not the CD itself.



But Blizzard isn't suing for the rights for the physical CD! Maybe you're right about contract law, but it doesn't matter. Just because you're fine under contract law doesn't mean you're fine under copyright law.

You have absolutely no clue.

The relevant text from the copyright act has already been posted more than once. It is explicitly stated that copyrights do not pertain to the copying required for use of the software, or for backup purposes. The only countries that do not have copyright laws specifically allowing you to use the software as necessary, also do not uphold licenses.

Learn first, post stupid shit after. Even without going anywhere, there are 14 pages refuting every point you gave.

This would be fairly obvious if you weren't intentionally playing stupid. Take each license on an INDIVIDUAL basis. Used in the intended manner, the consumer gets to play the game and Blizzard gets money. Terminated in the usual manner, the user stops playing the game, and Blizzard stops making that money. So far, nothing even psychoak could argue.

HOWEVER, look at the down side of potential abuse on either side. If Blizzard arbitrarily ends the license, the consumer is out his $50, and could be liable for infringement on that one copy - even if Blizzard sues them, the consumer's liability for violating one license is pretty low. If the consumer violates the license, Blizzard could be looking at millions of dollars in lost revenue, or indeed even lawsuits from other license holders, depending on exactly what the consumer breaking the license did. In MDY's case, the actual damage is being done by the 100,000 Glider users, but the conditions that allow those damages to occur were caused by ONE PERSON breaching the license.

While obviously not every license breach by a consumer is going to cost Blizzard millions of dollars, it only takes one to really ruin their day. THAT is what I meant when I said Blizzard faces the greater risk. The only way a consumer could face the same level of risk is if they breach the license in such a way as to encourage and enable others to do so as well - MDY is seeing a major downside to breaking the license, but the average user will not.

As for why software deserves greater protection, I've said so several times. Software by its very nature can easily - and in ways technically legal under copyright law - be altered, reverse engineered, cribbed for other programs, or AS IS THE CASE IN THE MDY CASE WE ARE DISCUSSING, interfered with after the fact. Show me ANY other copyrightable medium that can have retroactive infringement effects. If you infringe on a book copyright, that won't change anything about the copy I already own. Maybe the resale value, but that's it. You can't change what's printed in my book, you can't use your infringment to deny me access to my book, you can't affect my physical copy in any way. No amount of infringement you do can affect a copy already sold.

Now compare that to the use of Glider on WoW. Ten million people have active licenses to it, and yet the actions of less than 1% of those people can affect the use of the product by the other 99+%. These infringing actions can and do affect the usability of products that were licensed BEFORE the infringement takes place. Retroactive effects on other consumers, and standard copyright law would probably allow it. Yes, that is a BIG fucking deal, and if you can't see that, you're a moron.

psychoak - I've been called worse, by things I consider closer to real people than you. You sound like a spellchecker with touretts.

About the german EULA:

Well, not about the german one per se, but the norwegian one. Close enough. Basically, most US EULA's you're asked to sign are partly or wholly void because they ask you to give up rights granted by law that you cannot normally give up. (Some EULA's tries to get around that by claiming that by signing you also give up your applicable rights, but they haven't been tried in court so hard to say if they stick... some of those EULA's leaves a rather bad taste in my mouth reading'em.).

But this guy, he has to be a very ... optimistic fellow to sue Blizzard over this and NOT expecting a counter.

One exerpt from blizzard's motion for summary judgement:

"Indeed, MDY’s stated goal is to drive up Blizzard’s cost of combating Glider to the point it ultimately abandons efforts to block it, an option that Blizzard’s rule-abiding customers, who have filed over 465,000 formal complaints and voiced their continued displeasure with Glider on Blizzard’s forums, have made clear is unacceptable."

At any rate, other news: "Blizzard respectfully requests that the injunction preclude MDY, Michael Donnelly, all employees and agents of MDY, and any person acting in concert with them from marketing, selling, supporting, or developing Glider or similar software for use with WoW."

(This is from 'Virtually Blind'. Their main archive on the subject:
http://virtuallyblind.com/category/active-lawsuits/mdy-v-blizzard/

The judge ruled that the relevant text you refer to only applies to the owner of the copyright, and not to licensees. You want a clue? Read the court rulings yourself. I have.

Whether you agree with the judge's ruling or not, the judge has addressed that exact issue. I am not clueless or stupid for discussing the issue.

Fucking shit, did it again. Christ I hate this connection.

Cobra, the judge shitting on the law doesn't change reality. It's the Ninth circuit, they get rolled more often than a Vegas hooker. If the Supreme pansy shit ass fucker Court wasn't fucking us over and intentionally not ruling on copyright despite conflicting rulings on a federal statute, something they are required to resolve, they'd overturn this ruling and the insanity that was used to justify it.

If a judge rules that water is a dangerous substance based on the number of compounds it dissolves, will you stop drinking it?

Khardis, read more carefully. Blizzard gave them a day to surrender before filing. They just launched a preemptive strike.

Willy, my original text would have actually looked like someone with Tourrettes, but I deleted most of the more explicit statements and reworded. I even ended up duplicating a sentence while editing stuff out...

You could use a spell checker though. A brain too, but that's asking too much I think.

Reality is, this could affect future rulings on EULAs and the efforts of companies to stop bots in multiplayer games.

In this case, I personally think there is nothing wrong with software companies having some control over piracy, and there is nothing wrong with game companies wanting some control over bots.

You can yell "but they can ban" until you're blue in the face, but frankly regular account and IP address bans are simply not being effective enough. The botters simply get new accounts and new IP addresses. Do you have a better idea?



No.

I don't have to blindly agree with you, psychoak.

God I'm getting tired of posting the same shit and walking through the logical conclusions step by step.

Okay - for the court to issue a Summary Judgement the had to assume that no disputed facts could render it invalid.

Needless to say, the question of whether "Glider" Infringed Blizzard or did anything illegal was disputed, and accordingly, the summary judgement assumes that for the purposes of this judgement "Glider" was perfectly legal and aboveboard. Read it carefully - it makes no statement about whether "Glider" does *anything* illegal, in and of itself - it rests on an interpretation of Blizzards EULA between Blizzard and the person that bought the the CD with the WoW client.

Abridged (Because I've already posted an unabridged version) Order of events -

The EULA on Program A (WoW Client)
A) restricts the consumer from using Program B (Glider); For purposes of Summary Judgment, Program B is *presumed* to be legal in and of itself
Retroactively 'steals' the title of the CD - THE PHYSICAL MEDIA THAT YOU WALKED OUT OF THE STORE WITH - from the person that bought it. This is critical because as the legitimate owner of that CD the consumer does not need a license (More on this below)
C) Issues a license to use the program

The consumer installs Program A, accepting the license agreement (because he way of installing otherwise)
The Consumer installs and uses Program B
This Use, *EVEN IF LEGAL* rescinds the license issued for Program A
The consumer uses Program A, violating the copyright of the owners of Program A because the consumer no longer has either title to the CD *or* a license to use the program.
The Owners of Program B are now liable for contributory infringement because the use of their program rescinded the license.

Note - nothing in this requires there to be *any* infringement of the Owners of Program B into the rights of the Owners of Programs A.


Umm - so? Copyright law is being used to cause this 'infringement', however, once you accept this interpretation as binding, there is *nothing* limiting the actions that the company can decide violate the license. You have to remember - the Summary judgement *assumes* MDY didn't do anything in and of itself illegal.

If you accept this proposition at all, then perforce you have to accept that the lawyers that write up the EULA can make *anything* reason to rescind the license so long as a court doesn't void the contract as unconscionable or decide it violates some *other* law.

And the only other law that *I* can see coming into play is anti-trust law.

But since nothing in this requires Program B to have done anything illegal themselves, whether or not they used fair use is irrelevant.

Factually Wrong sir - This is the "More on that" previously mentioned

*Copyright Law* contains provisions allowing you, as the legitimate, legal owner of a legitimately legally created CD, to install and run the programs on a computer or make a backup.

In fact, this 'license' is written specifically to deprive you of that right by retroactively saying you don't actually own the CD you bought - which, since that is adjudged by UCC 2 law, is thus where the entire formation of a contract question comes into play.

So no Cobra - they're not 'being nice' by offering you a license - they're actually stealing the property back out of your hand that you paid good money for by forcing you to take a license that gives you *less* rights than not having a license would give you.


I hope you mean that since, as mentioned, the court is (incorrectly) applying UCC2 sales law to actually override the copyright law.


Well no, you're paying for a legal and legitimate copy of the CD - That is all that is required to use the program under copyright law for me to use the program.

Again, the problem is that Blizzard is stating that you don't actually own the physical CD.


No - This entire case revolves around the belief that the EULA actually *gives* them the rights to the physical CD. Cobra - if you own that CD, Blizzards Case for Summary Judgement falls apart.

Jonnan

Since its the sole purpose of program B, yes they are liable.
Maybe that does not make the program immediatly illegal, but the maker of it is still responsible for the damages done. Because he made it to do damages.



Exactly. If you buy WoW in a retail store, you are buying a license. They dont care about the cd itself, but they just want to keep a certain control over their product.
A link to the EULA and Terms of use is printed on the box.
If you dont like it, dont buy it.
Or, in this case, dont try to sell a bot for it.

Correct. In this case, they are discussing MDY's licensed (not owned) copy of the intellectual property (IP henceforth). As far as I am aware, MDY does not actually own the copyright on any of Blizzard's IP.



I do not need to create an exact copy of a physical book itself in order to infringe on the copyright of the material - If I were to copy the words into an electronic format, that would still constitute infringement. It doesn't matter if I can create replicas of the binding and the pages that are in the book.

The separation of the physical medium and the information contained in the medium is a core part of copyright law as it currently stands.



Correct. If I own the IP on the CD. That is how he is currently ruling. Problem is, I have yet to find software that I actually own rather than license.

I'm not saying I agree completely, I'm just saying that is how I am reading his ruling and current law.

By the way, if I wanted to actually create a copy of the physical CD itself, I'd need the master used to make it and the silkscreen pattern used for the label, as well as my own personal factory. That would be pretty cost prohibitive - I do not think they have to worry about the physical CD itself being copied. They are a lot more concerned with the IP than the CD itself.



They are not talking about the physical CD itself, as far as I know. As I have said, a duplicate of the physical CD requires the master and the silkscreen pattern for the label, both of which I seriously doubt MDY has access to. They must be talking about the information contained on the CD.

Again, the separation of the physical medium and the information contained in the medium is a core part of copyright law as it currently stands. If you don't like it, fine, say so.

I'm not saying it's right, but that is how things currently work. Physical property is considered separately from intellectual property.

Why do I bother posting detailed data that people are determined to just flat out ignore?

Red Herring:
NO - MDY does not own a copy of a CD, MDY does not own a license to the WoW client. They don't *NEED* to. The fact that their program interacts with Blizzard is *irrelevant* for copyright purposes, because interacting with another prrogram is *not* an infringement.

Did you actually read the portion on the copyright act I posted?

Because you're right - you don't need to 'copy' a book to use it. You *DO* have to copy a program to use it - WHICH THE COPYRIGHT ACT HAS A SPECIAL PARAGRAPH TO ACCOUNT FOR!

I Posted it. I posted a link to it just so you could verify I wasn't discarding context or something. It says, quite specifically, that normal use of a program is *NOT* an infringement so long as you own the physical CD.

Yes - the copyright act says you don't have *all* the rights of the copyright owner just because you own the CD, but it also says, very openly and bluntly, that as owner of the CD you *DO* have this right.

What the hell is it with you corporate apologists that you can say "X", someone can post the actual legal text that says "No you're wrong", and you will proceed to rephrase "X" and repost it completely ignoring the law that says you're wrong?

Read the damn copyright law again - you are wrong, 180 degrees.

Again, No - You do *NOT* need to own the IP on the disk.

The Copyright act specifically differentiates the Owner of a Copy of IP from the actual Owner of the IP on that copy, and that the copyright owner has exclusive rights.

*THEN* there is a second paragraph: § 117. Limitations on exclusive rights: Computer programs.

Now, from the title, it would appear that, just possibly, in regard to these things called "Computer Programs", there may be "Limitations" on those "Exclusive Rights".

But possibly I'm being optimistic and taking the title "Limitations on exclusive rights: Computer programs" out of context.

Lets look at the text:

This seems to indicate, to my layman's understanding of the law, that the "Owner of Copy" of a program has some additional rights, within certain boundaries.

Note,: This "Owner of a Copy" person is different than the "Owner of a copyright" - the "Owner of Copy" would be the person that legally owns the CD, whether it's licensed or not.

Wow - this "Owner of Copy" person has the right, when using a computer program to make new copies of the program when they are "created as an essential step in the utilization of the computer program in conjunction with a machine"!

It's almost as if Congress, realizing that the old copyright law didn't allow for this automated copying of program from CD to Hardisk to memory, perhaps in some way decided to amend the law to allow this specific requirement of computer programs to be addressed.

Even more amazing! Congress appears to have decided that this "Owner of Copy" person should have the right to make a copy for the purpose of making a backup.

So CobraA1, please understand that when I say, "No, you're wrong when you say the owner of the CD has no right to copy the program in any fashion", it's only because you're insisting on an interpretation that is the exact opposite of what the law actually says.



And that's where it falls down for you CobraA1 - they *are* talking about the physical CD itself - because if you actually *own* that CD, then it's not an infringement on Blizzards rights for you to use that program, even if Blizzard says you don't have a license. And if you aren't infringing, then it's not possible for MDY/Glider to *contribute* to your infringing.

So, this Summary Judgement *requires* that Blizzard doesn't actually give you the CD. Which is where the whole UCC 2 question comes into play - For them to not give you the CD, the EULA has to be a legal contract - I don't believe it forms one, Willy is rather insistent that it does, the 7th, 8th, and (now, if this stands) 9th courts agree with Willy, the other 8 with me.

Jonnan

Interesting claim, and I had to look that one up. Appears you are correct.

The problem isn't that I wasn't reading what you had linked to - the problem is that I didn't have my definitions straight, which were in another document. If I'm not quite understanding everything, please do not immediately assume I am not reading what you have linked to. This stuff is, after all, quite complex and requires reading many documents in order to grasp it fully.

/me snips out lots of arguments I planned on using, but were knocked out after further study . . .

. . . and now that I've read enough legalese to make my head explode, I think I'll take a break . . .

Okay - my increasing frustration is rather evident - I keep posting the law, and Willy/Bodyless keep posting back that I must be wrong because it would be unfair to a company to force them to live within the strictures of this law.

Moreover I feel that exactly what it is that the disagree with keeps changing.

So I would like to know, what exactly is it among my 'axioms' that they believe I am wrong on.

So, I'm asking for people to read the relevant law and saw what they agree or don't agree with - a questionnaire if you will. I will supply links to support each of my assumptions - if you disagree please supply a link to counter my argument. Even if you find it in a legal decision, I would like a link to both the relevant decision and the law it cites.

Do *not* tell me why it doesn't apply in this specific circumstance. I'm trying to establish a baseline for figuring out why we're not communicating.

---

1) I believe the owner of the CD does not need a license to run the software.
From U.S. Code Collection, Title 17 - Copyrights
A) TITLE 17 > CHAPTER 1 > § 101. Definitions Establishes the Definition of "Copies" of an object and and "Copyright Owner"

§ 202. Ownership of copyright as distinct from ownership of material object Establishes the difference between "Copyright Owner" and "Owner of a Copy"
C)§ 106. Exclusive rights in copyrighted works Establishes the exclusive rights of the copyright owner.
D) § 117. Limitations on exclusive rights: Computer programs Establishes that, for a computer program, the "Owner of Copy" has the rights required to run the program and make backups of it, which is all that is required to use the program in day to day circumstances.

Therefore, so long as the person that buys the program owns the disk, having a separate 'license' is irrelevant, you can use the program in the normal course of events.

If you do not believe that simply being the legal owner of the disk give you the right to install and run the program regardless of accepting a license, please explain why?

---

2) I believe there are only two ways to classify the EULA that the buyer is forced to accept on the program.
From Uniform Commercial Code - Index
A) Either it is a modification of the sales contract, and subject to UCC Article II Provisions for sales contracts.
-or-
It is a separate contract from the sales contract, and subject to UCC Article I Provisions for general contracts.

Now, there are nine UCC articles, but all contracts, including EULA's, fall under UCC, and the UCC articles other than UCC I, II, and IIa are all quite specialized, so it seems to me this is either a modification to the sales contract or a regular contract.

Do you feel there is a third relevant law that guides this, do you feel it is a modification to the sales contract, or do you feel it is a separate contract?

---

3) I don't believe the EULA meets the standards of a Contract.
A) If the EULA is a General Contract, agreed to separately when the software is installed, then it needs to meet the standards established by the UCC and the courts to form a contract. These standards include (among others):
a) Offer
Acceptance
c) Consideration

a) An offer was extended
Because the buyer had no choice but to acknowledge the EULA in installing the program, and the buyer already had the right to install the program under point 1.), I believe this does not provide acceptance. The company is preventing the use of the program *despite* the fact that the owner is legally allowed to use the program, in effect extorting an 'acceptance' of the EULA.
c) Even given Offer and acceptance, for a contract to be formed, both parties must give to each other something of value, without which you have failed to form a contract, either to take an action they were not legally obliged to take, or to refrain from taking an action they were not legally obliged to refrain from.
The EULA fails to provide the buyer consideration - the action 'taken' was to allow the buyer of the CD to run the program, however if you accept point 1.), then it follows that the buyer *already* had that right.

Therefore no consideration has been exchanged, and no contract has been formed.

If you accept 1.) (The owner of the media has the right to use the software on the media) and point 2B) (that the EULA attempts to form a separate contract) . .
Do you believe acknowledging an EULA in the course of installing software you already had the right to install constitutes "Acceptance"? If so, Why?
Do you believe that receiving the right to run software via a license that you already had the right to run by virtue of owning the media constitutes "Consideration"? If so, Why?

---

4) I believe the UCC, both article I and II provides a relatively plain distinction between "Consumer" and "Merchant"
A) § 1-201. General Definitions (b) (11) "Consumer" means an individual who enters into a transaction primarily for personal, family, or household purposes
§ 2-103. Definitions and Index of Definitions (1) (c) "Consumer" means an individual who buys or contracts to buy goods that, at the time of contracting, are intended by the individual to be used primarily for personal, family, or household purposes.
C) § 2-104. Definitions: "Merchant"; "Between Merchants"; "Financing Agency". (1) "Merchant" means a person that deals in goods of the kind or otherwise holds itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction or to which the knowledge or skill may be attributed by the person's employment of an agent or broker or other intermediary that holds itself out by occupation as having the knowledge or skill.

This seems to me to create a very strong distinction between "Consumer" and "Merchant". If you believe there is no legal distinction between "Merchant" and "Consumer", or that this distinction is especially hard to determine by a review of the purpose for which a purchase was intended, please explain why?

Do you believe that the normal purchase of a computer game would qualify as a consumer, and if not, Why?

---

5) I believe UCC article II provides for protections for consumers to not be bound by modifications to the sales contract such as EULA's.
A) § 2-201. Formal Requirements; Statute of Frauds. Establishes the formal requirments for a sales contract - basically that money changed hands and the product was received - the actual sales contract takes place at the cash register of the store.
§ 2-209. Modification, Rescission and Waiver.
(1) An agreement modifying a contract within this Article needs no consideration to be binding.

(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.

(3) The requirements of Section 2-201 must be satisfied if the contract as modified is within its provisions.

(4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3), it may operate as a waiver.

(5) A party that has made a waiver affecting an executory portion of a contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver.

While this paragraph *is* a mouthful, it establises several things.
Most importantly for my purposes is that it establishes in (2) that if one of the parties is a consumer (i.e. Product is 'used primarily for personal, family, or household purposes.'), then any modification to a standard sales contract must be presented by the merchant and signed both the merchant and the consumer at the time of sale. Frankly, I think it's fairly unambiguous in the way it says it.

There *are* two other important things to note here - first, in paragraph (1), that consideration is *not* necessary to modify the sales contract, and in paragraph (4), that the consumer protections of (2) do *not* apply to waivers, which I suspect has caused a lot of confusions regarding other sales that *do* obviously have fine print like airline tickets. You *can* waive your liability for lost luggage pretty easily, barring other laws being involved. But waiving liability for a product is not the same as stating that you don't own the CD you just bought.

So, the question here is, if you accept 1) (That you have the right to use the software just because you own the CD), 2A) (That the EULA is an attempt to modify the sales contract) and 4) (It is easy to distinguish "Merchant" and "Consumer", and that buying a game qualifies as "Consumer"), do you accept that an EULA between a Merchant and a Consumer would require a contract to be separately signed and accepted by both parties? If not, Why?

---

To sum up: These are the five basic questions I think are relevant, and I have provided links to the law I'm using to inform my answer to each of them.
1) The Consumer has the right to use the software when he picks it up at the register.
2) The EULA attempting to modify point 1) is either:
2A) a Modification to the Sales Contract or
2B) a Separate Contract
3) If 2B, then both:
3A) the EULA fails to allow the buyer to not accept it and still exercise his rights, which makes acceptance of the EULA tantamount to extortion.
3B) the EULA fails to provide consideration, causing it to fail to create a contract.
4) If 2A, then the question of whether therthe Buyer was a consumer is relevant, and in the case of buying a game for home use, I believe clear.
5) If the buyer is a consumer, there are specific protections to guard against this type of contract being used in this way for a consumer - whether this is fair to a company is an argument for another day, the law is quite clear as to the minumum requirements.

I've asked these questions, separately, several times, and generally had them ignored in favor of being told I'm being unfair to companies, but if you seriously believe I'm wrong on this, I think you need to prove I'm wrong on one of these five points - otherwise the logic flows on rather inexorably. Please provide links to the law the you feel proves me wrong, by paragraph number, even if it's being referenced by a case.

Thanks - Jonnan

Thanks - and I apologize for the sarcastic tone of the post there and appreciate your looking past it and actually checking the primary source (I've been using the cornell site a lot myself) - I will happily concede that after 15 pages *I* wouldn't look at every page myself for previous posts, but there have also been a number of frustrating points where someone says "X" with nothing to support it, I post the legal counterpoint that I feel is fairly plainly written, and the response is "No, you must be wrong because 'X'" - a frustration that can eventually lash out at anything that looks similar.

The Copyright law is fairly clear - the big question is whether the UCC is clear - I feel it pretty much is.

Jonnan

Well, since the forum ate my original post, I'll repost more briefly:

1) I agree. IF a person owns the software, they are allowed to use it. This almost never happens, though - almost every piece of software in current use is licensed.

2) I'll take choice A, please.

3) As a separate contract, you are probably correct.

4) This distinction hovers between "nebulous" and "outright lie". The same person can be considered BOTH in the SAME TRANSACTION. For instance, my boss orders items over the internet as part of his job. If he were to order an item for personal use, he would be fulfilling the definition of both a consumer and merchant at the same time.

5) The Good being sold is ambiguous. While the consumer might believe he is purchasing a disc to own, the company believes he is purchasing the license to use a disc. While you may not believe the current scheme of box warning + EULA inside constitutes fair warning of what is being sold, case law disagrees. I'm not going to bother posting links, as you'll simply call them "bad judgements" and ignore them. Frankly, your reading of the consumer protections is what I would consider necessary for children and the handicapped, not for legally competent adults.

In my judgement, the current state of affairs meets the bare minimum required for such a contract. I'd like to see more formal warning (specified wording, label size, etc) like the health warnings on tobacco, but that's not what you're after. What you want is the software equivalent of TRAP laws, until software is covered soley by unreasonably permissive copyright laws. It's fine you have an agenda, I'd just prefer you were open about it.

Cobra is honest! One down, two eternal hypocrites to go.

Stardock should add butt sex to their EULA's!

"By installing this software, you agree to be fucked in the ass at our discretion."

That way they can fit in with the major game publishers and still keep a sense of humor.

Fair warning my ass. It's only figurative at this point, but we're already getting fucked in the ass if EULA's are legally binding. How the hell do you call "license enclosed" fair warning? That's assuming you even got that much. You're about as honest as Baghdad Bob. People like you are why these laws were written. Idiots convince themselves all kinds of screwy shit are reasonable things to do.

Thanks - I disagree with you on these, but at least we're talking about small, definite points now, not whether it's fair to one side or the other - {G}.



See - I'm sorry, but to me the distinction is so very obvious I find it mind-boggling that you keep insisting it's nebulous - there is a slight grey area because "Consumer" and "Merchant" aren't defined as 'opposites' exactly, but while "primarily for personal, family, or household purposes" versus "a person that deals in goods of the kind or otherwise holds itself out by occupation as having knowledge or skill peculiar to the practices or goods involved in the transaction" are not mirror image, black and white definitions, they are certainly complementary ones.

The key word here seems to me to be "Primarily" - if someone is in a profession something where, even if he was ordering it for personal use, it would be reasonable to assume it was going to be used for work on a consistent basis? If I order a copy of photoshop and I'm the company staff photographer, then I think a court is likely to decide I'm a merchant for purposes of the transaction even if I used my money, ordered from home, and installed it to my PC. On the other hand, if I'm the company accountant, that same transaction will be a consumer at home, but a merchant when I'm at work ordering a copy for the guy that *is* the company photographer.

In any case - maybe there's a grey area there I'm not seeing, but UCC 2 obviously *intends* there to be a distinction, and while we might argue the question of what a photoshop transaction properly is under given circumstances, it's going to be a hard sell for anyone outside the actual computer game industry to be considered a "Merchant" when buying a copy of WoW.



Here's the thing - if you accept 4), then 5) follows inexorably if the buyer is a consumer. The CD is the original item being sold, and only by interpreting the EULA to being binding can the company say "No, you don't own that product". That's not my reading, it's clearly stated there that the merchant has to present the modification, and both he and the consumer have to sign it.

And yes, I would like to see the specific decisions *and* the law they cite underwriting the decision - putting words in my mouth about what I will accept is rude - I asked to be fair and clarify where we were not getting through to each other, and I think if you're going to state that I'm wrong based on specific cases, it's fair for me to ask that you present the cases so I can say either
A) Why I don't think it applies to this
Why I think that specific case is wrong (And frankly, the districts are spilt. Therefore *SOMEBODY* is wrong) or
C) Why I think you're case is relevant, the logic is tight and well reasoned, and dammit it turns out I'm wrong.

I never get emotionally involved with being right. I *do* get emotionally involved with tracking the logic of a theory through point by point - if I'm wrong about point five, I'm wrong about everything.

Jonnan

Do you have a better idea?

Pretty much everywhere they can, they make the license available. It's in the box, on their website, shown whenever the client is installed or updated, available from the client before you login, etc. It's pretty difficult to miss.

Maybe they should make it more obvious on the retail shelves somehow? I know that when buying it electronically, it's plastered all over the place before you buy it.

Okay psychoak, mind if I ask a few questions?

-What exactly is the problem you are trying to solve?
-How do you propose Blizzard handles the bot problem?
-How do you propose Blizzard handles people who avoid banning by changing IP addresses?
-How do you propose Blizzard handles bots that are widely available?

Handling bots, especially when large numbers of people have them, is not an easy task.

Some years ago, I left a game called "Silkroad" because the economy was in shambles and there was no game to play after the bots took over. They stole kills left and right, and there was no way to turn a profit in a market flooded with the same items a gazillion times and few humans around to buy the items. Max level characters filled the common roads and made travel impossible. You knew most of the "players" were bots - they made long lines of the same character with almost the same name, and they followed the exact same path when traveling. It was absolutely out of control.

The game became impossible to play, and I stopped playing it. This whole idea that bots can't affect a game is total nonsense. I left a game because bots made it unplayable.

The problem is that by attempting a legal solution to a technical problem, imo at least, the damage allowing *this* kind of broad enforcement of an EULA is going to cause far more damage than it's worth, because in order for this to be a useful solution, you have to discard immense numbers of consumer protections that were placed *into* contract law originally because it was abused too often over the years.

Willy has been quite explicit that he thinks that simple things like enforcing the (as I read it) simple requirements of requiring the merchant to present the EULA and both they and the consumer sign it is "what I would consider necessary for children and the handicapped, not for legally competent adults", and I get the impression that Bodyless and possibly yourself agree.

For myself - The average income in the United States is ~$30,000, the starting pay for a business lawyer is ~60,000 in business, rising to an average (median) of $120,000 across the industry (per Bureau of Labor Statistics . Contract law is a highly specialized field that rewards having a formal knowledge with four times the average U.S. salary.

So I find it somewhat disingenous to proclaim that restricting the practitioners of contract law to either working with people equally specialized in their field ("Merchant") or to practicing their art with the kind of careful, full disclosure of the sort used when *any* ethical specialist is working with a layman, is somehow treating the layman as if he were handicapped. He's no more handicapped than I would be going into a boxing ring with a professional boxer. Guess what - there are rules that say I can't go into the ring with a professional boxer without specific protections that wouldn't apply to another boxer and the professional boxer is sure as hell not allowed to touch me *outside* the ring, no matter *how* much I may look at first glance like I'm a big boy and can defend myself.

That doesn't mean I'm a wimp, a child, or handicapped - that's simply acknowledgement that there is a qualitative difference between a boxer that makes his living doing that and a guy that repairs computers for a living.

Jonnan

Not necessarily. You are buying a game, yes, but it is only an assumption that you are buying the cd inside the box. If there is a fair warning that you purchase a license and the cd is simply provided for you to get the a copy of the software, your assumption is useless.
Now you can argue what a "fair warning" is. But that decision has to be made by either the law makers or judges.




Solving all technicel problems by a technical solutions is nearly impossible. Except not making PC games at all.

No security software is 100% secure as we can see.

You either have to do a legal solution to certain problems or stop selling games.

Jonnan - a bit of indirect personal experience, if I may. One of my friends from high school is a lawyer who specializes in debt collection and representing creditors in bankrupcy cases. You would be floored by the percentage of people who use "I signed it, but that doesn't mean I knew what it said" as a defense, and it almost never works. This holds true for utility bills, car loans, morgages, and damn near anything else. Clearly, even having someone hold consumers' hands through a contract, having them initial various paragraphs, etc. does not prevent consumers who either don't read what they sign or simply refuse to comprehend that they can actually be held to an agreement.

The same applies to EULAs. Consumers are given warning that such an agreement is required, with instructions on how to find the full text before purchase. If a consumer is unwilling to seek information they are told is relevant, there is no reason to believe the majority of them will read it even if they are forced to sign it before buying. The consumer protections are ineffective because they can't protect the consumer from himself - no merchant needs to intentionally deceive the consumer who is willing to do the dirty work for them.

For the distiction between merchant and consumer, to be truly an either/or definition, they would need one of two things. Either:

A ) both terms are defined in such a way as to prevent any person from falling into both catergories, and no person can fail to fall into one or the other class.

or

B ) one is defined in relation to the other. "A consumer is defined as any person who does not meet the definition of merchant as defined in...."

Failing either of those, the distinction is not definite. If UCC intended such a distinction, they sould have written it into the law explicitly.h

From post #308 by Jonnan001

Once you've used this argument, you can't honestly expect me to put much effort into finding precedents to prove you wrong - you just bypass them and move on. You've done it before and will certainly do it again.

If I were to correct what you just said to accurately reflect the opinion you've repeatedly expressed, the preceding would read "the damage allowing *any* kind of enforcement of EULAs is going to cause more damage than it's worth..." You have held that EULAs are unenforcable in their entirety, not that this is an unacceptably broad enforcement of an otherwise allowable contract. Please be consistent.

. . . and the problem with the "technical problem" is that it's a virtually unsolvable problem. I've gone through the information theory I know of, and ultimately whichever program gets installed on the user's computer first will always have the upper hand.

If the bot is installed before WoW is installed, there's vitually no way to guaruntee that WoW can detect it's on the same computer as a bot. In addition, even if installed first, the strongest measures against bots would require rootkit-like low level access to the system. WoW would have to take over some of the OS's own functionality - which has proven to be a diasaster for DRM schemes that try to do the same thing.

I wouldn't mind signing the EULA at the store. I already have to sign for my credit card. However:

I'd have to agree with this. Ultimately, it's up to the consumer to know what he's getting himself into, and ultimately it's the consumer's fault for not reading the fine print. No matter how easy it is to read, no matter how big the print is, no matter how many times people are warned, there are always those who don't stop and think before they purchase.

In addition, there always seem to be those who think that this stuff is optional, or who believe that it's okay if they don't get caught and think they won't get caught. There's no shortage of people who just don't care and decide to do their own thing no matter what you put in front of them.

-What exactly is the problem you are trying to solve?

I buy a product, it may or may not have "license enclosed" written on the outside. This is indicative of jack fucking shit. To be preposterous, they could be giving away fishing licenses. To be reasonable, that license can say anything from "By using this software you agree to be bound, gagged, and raped by our company at our discretion" to "You agree not to reverse engineer this product"

Stardocks are the latter, EA's are beginning to resemble the former. A generic "license" warning is bullshit. It's no such thing. Beware of dog means beware of dog, you stay out of the fucking yard. What good would a notice that there was a sign inside the door do the mailman?

My problem is that my useless congress and my cunt punting court system have hung me out to dry over the past several years and not solved one of the very few real injustices perpetrated by industry in this country. It's fraud. Users of software have been told to shut up and take it because the software industry is too rich to fuck with. Meanwhile they harass industries over stupid shit like their workers willingly working for them without health care coverage or retirement benefits, and take people to the cleaners for not putting warnings against using toasters in bathtubs.

-How do you propose Blizzard handles the bot problem?

What bot problem? I still haven't seen anything that indicates they have one. The only major complaint given by their users, a whopping 5% of them, could also point to them not having enough spawns of ridiculously rare creatures that people spend hours sitting around waiting for. I've seen suggestion of a bot problem and indications that I'd have to kill myself if I tried to actually play the game without using one myself.

Assuming there is a bot problem, what the fuck do I care? Blizzard is making shit loads of money off WOW. They've made phenomenal returns on their investment. Most industries would sell their souls and sacrifice their balls to Satan for even half the margins Blizzard is getting off WOW. 10% is a good investment. Why is it my duty to pay for Blizzard to add a few more bucks to their 1000% returns? Where is the injustice that needs righted in them making 600 million dollars a year in profit? How do the trifles they're whining about in costs become my problem?

-How do you propose Blizzard handles people who avoid banning by changing IP addresses?

They have to buy new accounts, by nature of being a subscription based service, this is a non-issue. This isn't a speed cheater rejoining the server he was just banned from and killing everyone five seconds into the start of the round. It's a harmless fuck with an insubstantial and correctable annoyance factor that has to pay money to get in, and is risking JAIL the second time around. Yes, jail. It's fraud to use fake names and adresses, Blizzard should be capable of verifying them, and then reporting them to the police, they have over half a billion dollars a year to buy and upgrade a simple verification program that even ad based services can afford.

How does this even relate to the issue? Terms of use on a privately owned server have fuck all to do with a hidden license that takes away your rights to a product after you purchase it.

-How do you propose Blizzard handles bots that are widely available?

Make a competing bot? Perhaps they should make their game a little more addictive to play and a little less time consuming? They honestly think 7 months is how long you should play a character to "finish" it? When you specifically design a game to suck away large amounts of money by keeping people locked into it for dozens of hours to accomplish something, a way around that time span is the first thing the impatient go looking for. It's their business plan, if they don't like half a billion dollars a year in revenue, they should change it.

50 bucks to buy a coaster you don't own so you can pay $15 a month to painstakingly level a character through intentionally shitty game play dozens of hours before getting to the better parts. They design the perfect attractant, then piss on our rights while attempting to fight it off. Items so rare that people will pay for them instead of playing, characters that take so long to develop that high level accounts have sold for thousands. They intentionally create the flaw to get more money out of it, and then complain about the marginal after effects.



It's called a design flaw. When playing a game becomes profitable, the fun is removed. A fact of life is not my problem. It is not the business of my government to artificially fix a design flaw in a game at all, let alone at the expense of my rights. If you think it is, you're either insane or completely incapable of reasoning the logical steps required.

Turning government into a tool for increasing profit margins at the expense of a fundamental right is a very long step down the road to an autocratic puppet government for the fortune 500. They must remain separate, to allow such things turns bribery into good business sense, which is already an apparent problem to anyone looking.