For the two of you that don't read EFF or /. take a peak at this:
http://eff.org/news/archives/2004_09.php#001962
IMO this is bad bad bad.

Yea, I don't even understand how this is possible.  All our rights can be waived by a click-through agreement?  What the fuck is that?
Not only that, but as many commenter pointed out, you can't see the license agreement before you try to install the game.  Then if you don't agree to it, you probably can't return the game because it's already been opened.
Additionally, what if I, say, deleted the TOS.txt from the archives before I installed the game, and installed it without ever reading the license agreement.  Am I legally held to a contract I never saw or agreed to?  None of this makes much sense!

Definitely not a positive ruling. Fortunately, the EFF is appealing.

The Patriot Act decision is far more important and I'm happy about that ruling.

grose.

[quote author=Soul Taker link=topic=8980.msg82962#msg82962 date=1096743491]
Yea, I don't even understand how this is possible.  All our rights can be waived by a click-through agreement?  What the fuck is that?
Not only that, but as many commenter pointed out, you can't see the license agreement before you try to install the game.  Then if you don't agree to it, you probably can't return the game because it's already been opened.
Additionally, what if I, say, deleted the TOS.txt from the archives before I installed the game, and installed it without ever reading the license agreement.  Am I legally held to a contract I never saw or agreed to?  None of this makes much sense!
[/quote]

Why is the fact that "our rights can be waived by a click-through agreement" surprising to you?  If you don't like the fact that Blizzard licenses its software for a particular use -- that is, to be used on their servers.

I don't like the ruling, but IMHO it's fairly cut-and-dry legally speaking.

[edit]Also, it's not just a "Click-Through" agreement -- you're supposed to read and agree to the license agreement before installing the software.  Installation of the software is tacit agreement to the terms of the EULA.[/edit]

[quote author=MyndFyre link=topic=8980.msg83012#msg83012 date=1096792161]
[quote author=Soul Taker link=topic=8980.msg82962#msg82962 date=1096743491]
Yea, I don't even understand how this is possible.  All our rights can be waived by a click-through agreement?  What the fuck is that?
Not only that, but as many commenter pointed out, you can't see the license agreement before you try to install the game.  Then if you don't agree to it, you probably can't return the game because it's already been opened.
Additionally, what if I, say, deleted the TOS.txt from the archives before I installed the game, and installed it without ever reading the license agreement.  Am I legally held to a contract I never saw or agreed to?  None of this makes much sense!
[/quote]

Why is the fact that "our rights can be waived by a click-through agreement" surprising to you?  If you don't like the fact that Blizzard licenses its software for a particular use -- that is, to be used on their servers.

I don't like the ruling, but IMHO it's fairly cut-and-dry legally speaking.

[edit]Also, it's not just a "Click-Through" agreement -- you're supposed to read and agree to the license agreement before installing the software.  Installation of the software is tacit agreement to the terms of the EULA.[/edit]
[/quote]
How is the fact that a company can totally deny us our court-granted rights just because we install some software not shocking to you?
And as I said, what if the user never even sees the license, such as by circumventing it or using a cracked installer without one.  How is being legally bound to some contract you never saw or agreed to, or even knew existed, fine with you?

If a user uses a cracked version or alters the software before they install it they are breaking the law. There is no legal way to install the game and not have to pass through the EULA.

[quote author=muert0 link=topic=8980.msg83080#msg83080 date=1096830905]
If a user uses a cracked version or alters the software before they install it they are breaking the law. There is no legal way to install the game and not have to pass through the EULA.
[/quote]
And that's irrelevant to the point I posed.

[quote]And as I said, what if the user never even sees the license, such as by circumventing it or using a cracked installer without one.  How is being legally bound to some contract you never saw or agreed to, or even knew existed, fine with you?[/quote]

[quote]If a user uses a cracked version or alters the software before they install it they are breaking the law. There is no legal way to install the game and not have to pass through the EULA.[/quote]

[quote]And that's irrelevant to the point I posed.[/quote]

If you say so. Read what you said though...

[quote author=Soul Taker link=topic=8980.msg83014#msg83014 date=1096794762]
How is the fact that a company can totally deny us our court-granted rights just because we install some software not shocking to you?
[/quote]
Evidently they aren't court-granted, because the court would have had to side with precedent.

[quote author=Soul Taker link=topic=8980.msg83014#msg83014 date=1096794762]
And as I said, what if the user never even sees the license, such as by circumventing it or using a cracked installer without one.  How is being legally bound to some contract you never saw or agreed to, or even knew existed, fine with you?
[/quote]
If the user never sees the license, then he never opened the package; the license is part of the electronic distribution unless he altered the original binary or the binary in memory, which is illegit; or it's part of the physical package.

Both of you, the fact remains, illegal or not, are you bound to a contract you never saw or even knew existed, let alone agreed to?  Anyone can download a program, not knowing it's been cracked and had the installer modified.

PLaying ignorant isn't enough to prove innocence.

[quote author=muert0 link=topic=8980.msg83131#msg83131 date=1096851581]
PLaying ignorant isn't enough to prove innocence.
[/quote]
Innocence from WHAT?  The point is NOT that the software is pirated, whether you know it or not.  The point IS that you don't even know a contract exists!

Couldn't you plead the 5th if you pirated software?

[quote author=Banana fanna fo fanna link=topic=8980.msg83139#msg83139 date=1096855583]
Couldn't you plead the 5th if you pirated software?
[/quote]
What if the software license says you have no right to not incriminate yourself, and the judge agrees with that :P
Too many retarded possible outcomes of all this.

I'm saying trying to stand there and say you didn't read the EULA from a game because you downloaded an illegal copy of the game and didn't realise it was pirated and had a EULA before it was ripped or saying you didn't read the EULA because you just so happened to delete it before you installed the game is ignorant.

And if you actually went to trial for pirating software it would be because you would have been pirating tons of software and they would have hard evidence against you in most cases so you could plead the fifth all day long and it wouldn't help you.

[quote author=muert0 link=topic=8980.msg83165#msg83165 date=1096874890]
I'm saying trying to stand there and say you didn't read the EULA from a game because you downloaded an illegal copy of the game and didn't realise it was pirated and had a EULA before it was ripped or saying you didn't read the EULA because you just so happened to delete it before you installed the game is ignorant.

And if you actually went to trial for pirating software it would be because you would have been pirating tons of software and they would have hard evidence against you in most cases so you could plead the fifth all day long and it wouldn't help you.
[/quote]
So you think being legally bound to a contract you never knew existed/signed is perfectly alright?

No I'm saying it's stupid to try and say erasing a contract and pretending like it doesn't exist should cover your ass if you got in to a legal situation...

I'm probably not posting to this thread anymore because it's turning into an infinite loop of retradation.

[quote author=Soul Taker link=topic=8980.msg83148#msg83148 date=1096858131]
[quote author=Banana fanna fo fanna link=topic=8980.msg83139#msg83139 date=1096855583]
Couldn't you plead the 5th if you pirated software?
[/quote]
What if the software license says you have no right to not incriminate yourself, and the judge agrees with that :P
Too many retarded possible outcomes of all this.
[/quote]

No, you can't plead the 5th if you've pirated software.  The situation that while arise is whether or not you give testimony at your own trial; if your attorneys question you, then the prosecution has the prerogative to cross-examine you.  Once you have entered testimony at a trial you have waived your legal rights.

Soul Taker: you're a moron.  You're talking about a million-to-one exception in an otherwise cut-and-dry situation.

Note that someone had to actually *own* the game before they could hack it.  That person would be liable for his actions.  You would be liable for your ignorance.

[quote author=muert0 link=topic=8980.msg83165#msg83165 date=1096874890]
I'm saying trying to stand there and say you didn't read the EULA from a game because you downloaded an illegal copy of the game and didn't realise it was pirated and had a EULA before it was ripped or saying you didn't read the EULA because you just so happened to delete it before you installed the game is ignorant.
[/quote]

You can read the EULA and not accept it, yet play the game. If you do that, you're violating copyright, but you're not bound by anything in the license agreement. Sounds like a reasonable thing to do - only one person has to do this, and could do it in some country where the copyright violation isn't illegal. Then the information on how to produce bnetd could be exported from there.

Consider the case where the author's supplied installer is so braindamaged that it doesn't even work.  For instance, at least for a while, ID's Doom3 installer refused to install on Win2003 because it had been told to find Win2k || WinXP or fail out, when the designers really just mean to find "Win2k or better."  Any Win2003 user who wanted to install Doom3 then has to wait for the authors to fix the installer, or hack/bypass the installer himself since he knows the game really will work.  The situation is even muddier if the author refuses to fix his installer (or is unavailable to do so).

Obviously, most people expect some sort of EULA, but if you're forced to bypass the installer to get the game onto your system, have you agreed to a EULA that never even attempted to show itself (due to installer dying messily before even offering the EULA, and manual install of course doesn't try to show it)?  If you have not agreed to it, what then?  Some countries may consider you to be bound by it anyway, others might say you're violating copyright (as Adron mentions), and others - well, there's many countries out there, and their laws are not very consistent. :)

I dont know much about the legalness, but if it's true that the EULA is binding, then what happens if some company includes, "And you must pay us a daily fee of $100 as long as you own this game" somewhere in the middle.  Most (all?) people don't read the EULA, so they would click agree.  Does this mean that everybody who doesn't send in their money can be legally responsible for it?

[quote author=iago link=topic=8980.msg83184#msg83184 date=1096909543]
I dont know much about the legalness, but if it's true that the EULA is binding, then what happens if some company includes, "And you must pay us a daily fee of $100 as long as you own this game" somewhere in the middle.  Most (all?) people don't read the EULA, so they would click agree.  Does this mean that everybody who doesn't send in their money can be legally responsible for it?
[/quote]

Probably, but I would think that the company would rather disallow the use of the software than try to collect that.

Also, this is also a very obscure and (again) unlikely situation.  If you guys actually look at what *did* happen rather than oddball hypotheticals, then you'd see the crux of the issue.

Again, I'm on the side of BnetD.  I think Blizz is lame for pursuing the matter.  :-/

I don't. BnetD would _kill_ Blizzard. To tell you the truth, if there was a stable bnetd server network, I could download all the games I want off of suprnova, put in a fake CD key, and play.

Perhaps they should go after people who host bnetd servers?

[quote author=Banana fanna fo fanna link=topic=8980.msg83202#msg83202 date=1096918011]
I don't. BnetD would _kill_ Blizzard. To tell you the truth, if there was a stable bnetd server network, I could download all the games I want off of suprnova, put in a fake CD key, and play.

Perhaps they should go after people who host bnetd servers?
[/quote]
Ah, but you see bnetd was probably years away from getting anywhere near something like that.  Their architecture was really only suited to standalone servers.

Blizzard would never have won this case in the UK, thankfully. You can't just waive anything you want in a contract here - you can go to court and argue that the contract was unreasonable in the first place, and thus unenforceable.

To me, some of the things settled in favour of Blizzard here are crazy. While I think it's fair for people and companies to enjoy the financial rewards of their work, but I also think that whatever is on my computer is mine. The hard drive is mine, hence the data is mine. Thus, I can do whatever I want with it. Commercially exploiting that is an entirely different matter - were Blizzard to simply say "This server software will harm Battle.net's financial viability" (and be required to prove it), I would be a lot more sympathetic - but some of the stuff they've come out with so far with here is just outrageous. I have a right to reverse engineer software on my computer. I have a right to observe, study, understand, and replicate any transmission sent by my computer, and any transmission recieved by it. If I wish to, I have a right to share the fruits of my labours with others.

I don't have a right to rip off other people by copying their work and selling it, but that's about the only right I don't have, imho.

Does this mean TestBNCS is illegal in the USA but maybe not in the UK?

Agree with everything Arta said, but adding an example.

Ford motors manufactures and sells parts for its cars.  Other companies examine those parts and make similar parts with equal attributes, performing the same or better as the OEM.  Why can we not do this with software?

[quote]
Does this mean TestBNCS is illegal in the USA but maybe not in the UK?
[/quote]

According to knowledgeable people I spoke to about it, I can do pretty much whatever I want as long as my motivation is academic. If I tried to sell TestBNCS that would be extremely dodgy. Giving it away is rather more of a grey area, but still a bit dodgy, because even a free product  can be construed as being commercial (for some reason).

One thing's for sure: If Blizzard were to bring this type of case in the UK, it would be much harder for them to win - presuming they don't have any relevant patents they could bash me with.

[quote author=(V)eh link=topic=8980.msg83233#msg83233 date=1096925415]
Adding contacts could also(Not implying anything just theorietically) vL could put a line in BNLS contact they can log keys, username, passwords etc. Thats the whole point of reading contracts(I dont, just click and go as I dont have time). Anything can be waivered with a contract in MHO.
[/quote]

It certainly doesn't work that way here. Example:

You are required to sign a contract in order to buy a new car. The contract says that if a serious material flaw in the car causes a fatal or serious accident, the car company cannot be held liable.

That contract would be unenforceable under UK law, because it was unreasonable. More specifically, any product sold here has a warrant of merchantability, and that cannot be waived, because such a waiver would be unreasonable.

Most of the EULAs here that say "no warrant of merchantability, no fitness for a particular purpose, no liability accepted, ... etc" are pretty shakey legally speaking. If, for example, I bought some hospital life support software (or something equally critical) that contained those clauses, and a flaw in it caused someone to die, there's no way a waiver of liability would stand up in court.

I know, you probabley remeber me on a differnet username shortley before June, I live in wales and some stuff has to be done in a certain way but other in a different.

[quote author=Grok link=topic=8980.msg83230#msg83230 date=1096925055]
Agree with everything Arta said, but adding an example.

Ford motors manufactures and sells parts for its cars.  Other companies examine those parts and make similar parts with equal attributes, performing the same or better as the OEM.  Why can we not do this with software?
[/quote]

Does Ford sell parts, or the license to use a part?  They make an actual sale.

[quote author=MyndFyre link=topic=8980.msg83199#msg83199 date=1096917797]
[quote author=iago link=topic=8980.msg83184#msg83184 date=1096909543]
I dont know much about the legalness, but if it's true that the EULA is binding, then what happens if some company includes, "And you must pay us a daily fee of $100 as long as you own this game" somewhere in the middle.  Most (all?) people don't read the EULA, so they would click agree.  Does this mean that everybody who doesn't send in their money can be legally responsible for it?
[/quote]

Probably, but I would think that the company would rather disallow the use of the software than try to collect that.

Also, this is also a very obscure and (again) unlikely situation. If you guys actually look at what *did* happen rather than oddball hypotheticals, then you'd see the crux of the issue.

Again, I'm on the side of BnetD. I think Blizz is lame for pursuing the matter. :-/
[/quote]

Well, the thing is, if I could make money like that I'd do it.  I don't think it's hypothetical at all, because it's a perfectly possible situation.

[quote author=iago link=topic=8980.msg83252#msg83252 date=1096928726]
Well, the thing is, if I could make money like that I'd do it.  I don't think it's hypothetical at all, because it's a perfectly possible situation.
[/quote]

I don't think that you could make money like that because its feasibility is so low that it's likely unenforceable.

The thing about the current case is that the provisions of the EULA and TOU are set forth as a protection of Blizzard's rights.  BnetD violates a protection mechanism set up by Blizzard in order to prevent illegal use: only one user can log onto Battle.net at one time per CD key, and the CD key has to be a legitimate CD key in Blizzard's database.

[quote author=Arta[vL] link=topic=8980.msg83237#msg83237 date=1096925938]
You are required to sign a contract in order to buy a new car. The contract says that if a serious material flaw in the car causes a fatal or serious accident, the car company cannot be held liable.
[/quote]
I do not know of any kind of car sale (new or otherwise) from a dealership here that would say something like that.  Warranties are one of the biggest factors in car sales (if advertising is any indication).  This is the kind of scenario that I was labelling "hypothetical," iago.

[quote author=Arta[vL] link=topic=8980.msg83237#msg83237 date=1096925938]
Most of the EULAs here that say "no warrant of merchantability, no fitness for a particular purpose, no liability accepted, ... etc" are pretty shakey legally speaking. If, for example, I bought some hospital life support software (or something equally critical) that contained those clauses, and a flaw in it caused someone to die, there's no way a waiver of liability would stand up in court.
[/quote]
Generally speaking, the same is likely true in the States.  I emphasize "likely", though, for a couple reasons....
1.) Most life-support software, if it was custom-made, is probably not licensed but rather purchased by a hospital.  The contract would likely include source code maintenance contracts and other, continued involvement by the development company.
2.) A hospital that disclaims rights like that is ignorant.  They want as little liability as possible, and giving up these rights is certainly not minimizing any liability on their part.

As an update, if anybody didn't read the case decision, here is the part that I think is the real meat of the decision:

[quote]
The parties in this case did have unequal bargaining power because Blizzard is the sole seller
of its software licenses; however, the defendants had the choice to select a different video game, to
agree to the terms and gain the software and access to Battle.net, or to disagree and return the
software for a full return of their money. See De John v. TV Corp. Int'l, 245 F.Supp.2d 913, 919
(C.D. Ill. 2003). Also, the defendants are not unwitting members of the general public as they claim.
They are computer programmers and administrators familiar with the language used in the contract,
and have the expertise to reverse engineer and understand source code. Next, there was no surprise
about the contract terms. The defendants had notice that the games were subject to the EULAs and
that access to Battle.net was subject to a TOU. 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.
Even if the contract was procedurally unconscionable, it is not substantively unconscionable.
"Substantive unconscionability focuses on the actual terms of the agreement." Pardee, 123 Cal. Rptr.
2d at 295. It traditionally involves contract terms that are so one-sided as to "shock the conscience"
or that impose harsh or oppressive terms. Id. The terms of the EULA and TOU in this case do not
impose harsh or oppressive terms. Therefore, the Court hold that the EULAs and TOU in this case
are enforceable contracts.
[/quote]

[quote author=MyndFyre link=topic=8980.msg83315#msg83315 date=1096965632]
As an update, if anybody didn't read the case decision, here is the part that I think is the real meat of the decision:
[/quote]

Looking at the real meat, I can see it saying how Blizzard could sue someone for breach of contract. I don't see how it could be used to kill bnetd.