Originally posted by: VirtualLarry
Originally posted by: Smilin
I just saw over at slashdot that it looks like some guys ended up in court after violating a EULA (among other things). They even tried all the same arguments that you guys did. Wanna guess what happened? Here, I copied some juicy bits from the judgement for ya...
Link, please?
Originally posted by: Smilin
First they tried saying the EULA was a violation of copywrite law
How is a EULA in violation of copyright law? It's an unlawful adhesion contract.
Originally posted by: Smilin
Then they tried the good old "first sale doctrine" crap.
It's not crap, the much more sane German legal system upheld it. It has also been upheld in the past in the US, for other copyrighted works such as books. Unfortunately, I am unaware of any such support with respect to copyrighted software. But the legal concept is clearly the same, and the works protected under largely the same body of law.
Originally posted by: Smilin
"The EULAs and TOU in this case explicitly state that title and ownership of the games and Battle.net remain with Blizzard. Defendants do not produce sufficient evidence demonstrating that title and ownership of the games passed to them. Therefore, the Court finds that the first sale doctrine is inapplicable here."
Interesting. That is in direct contrast to other decisions that I have read about, regarding books.
When you purchase a book, do you "own" the work? No, you own the book, containing the work, and any reasonable court would also consider you to have an implicit copyright license to the work printed on the pages of that book. But yet, even though you don't "own" the work, they considered the "first sale doctrine" to apply.
My take is that recent decisions made about this lack understand of the legal concept, and that they found that it didn't apply, based on a technicality of terminology, is unfortunate.
Clearly, if the customer paid money, then they must own *something* right? Otherwise the seller, in this case Blizzard, I guess, simply took their money and offered them nothing at all. Isn't that fraud or theft? Clearly, that isn't true either. So what do they own? The license. Not the work itself. But IMHO that doesn't mean that the doctrine doesn't apply.
Originally posted by: Smilin
Then they try the "contract of adhesion" crap.
Next, the defendants argue that even if a contract was formed, it was a contract of adhesion and is therefore unenforceable. Defendants argue that the contract is adhesive because it fails to square with the reasonable expectations of the parties, as no average member of the public would expect to pay $49.99 for a game and then be unable to use it when he or she gets home.
Would you expect to pay $49.99 for a game, and then find out that you were not able to use it when you opened the package? Would that be a reasonable expectation for you? It certainly wouldn't for me.
Originally posted by: Smilin
Defendants also argue that no reasonable person would expect to be barred from installing the game he just bought unless he or she is forced to comply with an EULA
The defendants also had access for up to thirty days to read over the EULA and decide if they wanted to adhere to its terms or return the games. Defendants had the same option in obtaining access to Battle.net. Therefore, the Court finds that the licensing agreements were not procedurally unconscionable.
But this is a different issue then, talking about terms of use for a service. That is a different issue than a shrink-wrap EULA for a single software license purchase transaction.
Originally posted by: Smilin
Then comes "fair use".
The defendants claim that even if the EULA and TOU are enforceable under state law, they are unenforceable because they prohibit the fair use of the Blizzard software.
The defendants in this case waived their "fair use" right to reverse engineer by agreeing to the licensing agreement.
I fail to see how that agreeing to X, automatically implies that I waive right to Y.
I'm curious about the article you quoted, because I remember seeing something about Blizzard trying to use the DMCA to go after someone that reverse-engineered the BattleNet protocol and write their own server. Was that the same issue that you quoted? Because I didn't see anything about the DMCA mentioned at all. It's pretty well-known that both Blizzard and Valve/VU have used the DMCA to aggressively and IMHO unlawfully "go after" some people. (Valve attempting to use DMCA threads to silence the free speech of others, that might publish information in flaws in their game engine and protocols that might allow others to cheat.) Last time I checked, this was America, and that was legal. Valve has a number of people on staff that are european though, and they don't believe in freedom of speech over there, so I could see where some of their (unsupported by law) motivation for issuing those threats comes from. Look at the very recent spat between FutureMark of Finland, and HardOCP, for another example. Guess what, this is America, not Finland. Too bad for FM and their theatened libel claims.
In any case, thanks for posting that. Reading between the lines, it could be assumed that when attempting to set a precedent, it might be unwise to annoy the judge by changing legal tacts multiple times mid-stream. Then again, I'm not sure who was the plaintiff and defendant there.
Edit: fixed quote nesting
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