§§§ Is the Software industry playing fair? §§§

[Luc Solar]

(I have high hopes that this thread will succeed in avoiding religious issues. )

 

Did you know that when you buy software, you are actually buying nothing but a right to use the software according to the rules of the license agreement (= EULA)?

 

No, the JO CD you're holding is not yours. One could say that you've only rented it from LEC (or whoever it is who owns the copyright)

 

If you don't obey all the conditions of the EULA, you're right to use the software is cancelled immediately and automatically. That means you must return it or destroy everything you got from the store. The CD, the package, the manuals, everything.

 

In a certain software (Frontpage Epress, I believe) there was a printed EULA that forbid you from using said software in connection with anything related to "pornography, racism, hatred" etc.

 

Who the hell can say what is porn what is not? A female flashes her bare ankles in an islamic country and she gets stoned to death beacuse of "indecently exposing herself". I'm sure you get my point. And how does this work with things like...I dunno...freedom of speech?

 

What about the shrink wraps? You think they are 100% binding? Even if they tell you you can't use the software without wearing you "Microsoft pwnz!"- pin? Is there a limit to what they can tell you not to do?

 

Do you consider a shrink wrap agreement valid in general? (shrink wrap = the "yes I agree"- thingie that you get to see AFTER paying for the product and losing the right for refund by opening the package. The agreement you are forced to accept when installing.)

 

Is the agreement binding even though you do not accept it?

 

Is the agreement binding even though the re-seller has not in any way hinted that he is not selling the game but licensing it?

Are consumers supposed to be aware of the fact that they're only getting ”rights-to-use”? Is this common knowledge? I think not. I think copyright is common knowledge. Licensing software is not.

 

Ok. /rant. More later. Got to go. Discuss!

[Luc Solar]

Question:

 

Why do they not sell the software itself? Why this whole crap with licenses?

 

They got copyright, they can even to a certain extent patent their software.

 

You buy a video - what do you get? --> The videotape or DVD. It's copyrighted material, sure, but... still you get the video. It's your property, just like a book is after you've bought one.

 

Why licenses?

[Reborn Outcast]

I think they get it copyrighted so someone cannot steal and and start manufacturing them and thus, stealing money from the company who originally made it.

 

As for the EULA I think that once you buy it, it is yours and yours only. The copyright is only there to ensure that you don't make copies of it and sell it. So, yes, you own the game yourself but the company owns the product as a whole.

[munik]

The eula is only as binding as a court of law says it is. Just cause you agree to it, does not make you legally bound to it. Unless a judge says so. Any contract is like this. If you sign or agree to it, then later decide to break the agreement, unless both parties are fine with this one of them will take it to court. And then it's up to a judge to decide wether it is legally binding or not.

[Luc Solar]

There are a few US precedents on the matter of enforceability, but the US legal system is such a joke (no offence) that one can hardly take it seriously. Some judge sais shrink wrap licenses are binding, another sais they aren't. Oh well..

 

I'm cool with copyright, even though it doesn't really suit for it's purpose of safeguarding the rights of software manufacturers. (Copyright does not protect the IDEA or the PRINCIPLES of the software, which is really exactly the thing that *should* be protected.)

 

What bothers me is that every piece of software has an EULA on it. Every single one, (even open source software like Debian/Gnu/Unix.)

In normal software (not "open-source") they forbid you from doing just about anything with it. You can't see how it works or fix it. You may not alter it in any way.

 

I must get to work now, but I'll give you one example that might make you wonder what the hell is going on.

 

Example: Yesterday I downloaded the latest Nvidia drivers. They had a"browse wrap" EULA pop up which stated amongs other things: You may not make any copies of this software you may only use it on a single computer blah blah blah .. this license will automatically terminate if you do not comply to all terms and you must destroy the software in your possession immediately..

 

So what's strange abut that? Well...how about the fact that the drivers can be downloaded FREE OF CHARGE from the internet where Nvidia deliberately has put them so that we could uppgrade our drivers! You can download them at any time how many friggin' times you want. Spend the rest of your life downloading the drivers over and over again for all Nvidia cares!

 

Now...you download the .exe on your desktop. >> OOOPSIE!! My computer just made a temporary copy of the drivers to "/temp"!! This means I got one copy of the software on my desktop and an ILLEGAL copy in windows/temp! OMG! Breach of contract! I must immediately destroy all my Nvidia software and pray to god that they won't sue my ass off! This means I no longer can use my Geforce 2 at all... tough luck, huh?

 

Oh well... you won't be seeing me playing JO for a while. As said, I had to destroy all Nvidia software from my comp and JO won't run anymore. Damn these totally rational and 100% binding EULA's.

Luckily it wasn't my wife who downloaded the drivers 'cause she doesn't understand english...I'd be illegally using Nvidia software without even knowing it for god knows how long and me, my wife and your unborn child might have ended up in JAIL!

 

*dies of sarcasm overload*

[lukeskywalker1]

this topic always makes me mad!!!!!

 

its not fair, ive been thinking about it lately, i get why they do it, but still, its insane all the rules and regulations they put on the stuff.

 

if u distribute it, they will sue your butt, even if u dont sell it. its like that with music, and videos/dvds.... if someone comes to your house you cant have a movie on because its illegal, the company say we just lost a paying customer, so now we will sue for 250,000 dollars, (i think). the movie is only worth $20 at the most.

 

ok get certain things, if u distribute it, its like stealing, ur stealing from the people who made the software. even giving it away free, someone is getting free software...its just like stealing.

 

 

well at least i think they will sue you, im pretty sure they will. what is the sentence for pirating or just giving away software?

 

did u know u cant even record something off tv and give it away, thats illegal too.

i heard companies scan ur computer looking for illegal software...is this true???? ive also heard that all computers with windows 95 and up have som special file that cant be deleted, that lets the government look at ur computer whenever they want too, is that true or not? i cant remember the name of the file though.....

[Reborn Outcast]

Originally posted by lukeskywalker1

if u distribute it, they will sue your butt, even if u dont sell it. its like that with music, and videos/dvds.... if someone comes to your house you cant have a movie on because its illegal, the company say we just lost a paying customer, so now we will sue for 250,000 dollars, (i think). the movie is only worth $20 at the most.

 

ok get certain things, if u distribute it, its like stealing, ur stealing from the people who made the software. even giving it away free, someone is getting free software...its just like stealing.

 

Umm it would be pretty tough for them to find out that you did.

 

Originally posted by lukeskywalker1

i heard companies scan ur computer looking for illegal software...is this true???? ive also heard that all computers with windows 95 and up have som special file that cant be deleted, that lets the government look at ur computer whenever they want too, is that true or not? i cant remember the name of the file though.....

 

If you live in America wouldn't this violate some constitutional right? I think thats illegal to do so. It must be a myth.

[SkinWalker]

Perhaps it would be helpful to compare software with books. If an author writes a novel, he or she retains copyright to that novel. You as a buyer, purchase the book, but you don't have any interest in the copyright. All the buyer owns is the paper and ink, but not the work itself. The buyer is free to do anything he or she wishes with the book as long as it doesn't affect the author's rights. For instance, the buyer can prop up an end table, burn the book, or even sell it to someone else. What the buyer cannot do is reproduce the book, either by scanning onto a hard drive or photocopying, without the author or publishers express consent.

 

Now look at software. The buyer owns the media it comes on, but not the work itself. Just as the novel author retains the copyright to his intellectual arrangment of the words he used, the software developer retains the copyright to the intellectual arrangement of code used to create the software.

 

The consumer can transfer software as long as it is clear that the consumer relenquished all license and the software is removed from the hardware it was installed upon. Often, developers will state in their use policies that this cannot be done, but all one really has to do is visit a Half-Price Books store and see the used software for sale to see that it is tolerated if done correctly.

 

There's really more similarities than differences with software and other, more familiar media types, that most people understand the copyright on. It's simple marketing: the creator of a product deserves to be paid for each item distributed, even if recreated by the consumer. Otherwise, the market strategy is defeated, creating an unstable market. An unstable market in an industry, such as software or music, would initially benefit the consumer, but ultimately be disadvantateous to the consumer (prices would be near zero, but then high as the product becomes rare).

 

Happy Computing!

SkinWalker

[Nitro]

Originally posted by lukeskywalker1

if someone comes to your house you cant have a movie on because its illegal, the company say we just lost a paying customer, so now we will sue for 250,000 dollars, (i think). the movie is only worth $20 at the most.

 

Wrong. The law you're referring to only applies to unpaying audiences of 20 people or more. If you've got 19 people, yourself included, and you didn't charge them to actually watch the movie (meaning you can still cut 'em for food), legally you're as clear as a bottle of spring water.

[Luc Solar]

Originally posted by SkinWalker

Perhaps it would be helpful to compare software with books..... All the buyer owns is the paper and ink, but not the work itself. The buyer is free to do anything he or she wishes with the book as long as it doesn't affect the author's rights.....What the buyer cannot do is reproduce the book, either by scanning onto a hard drive or photocopying, without the author or publishers express consent.

 

Now look at software. The buyer owns the media it comes on, but not the work itself.....

 

Thanks for great allegory.

 

But I do disagree about what you said in the end --> according to most (all?) EULA's the buyer does NOT get to own the media. He gets nothing but a "right to use". The JO CD is property of LEC, it's not yours. (yeah, I know - like they would sue you if you burn the CD & manual or whatever...but anyways >> )

 

This whole situation is absurd. Why not use the same way as they do with books, videos, or music? Slapping these silly EULA's with their silly terms all over the place seems just dumb.

 

Take the example I gave earlier:

You download the drivers and automatically make a copy of it (windows does that!) to temp internet files. According to the EULA, you have already breached the contract and the license is terminated. There's no way you can get the drivers without breaching the EULA. It's not possible (Sure, you could try messing with the temp-folder, but.. that's beside the point) and that alone makes you wonder WHAT THE HELL is going on!? They expect me to take these agreements seriously? Oh please!

[ShadowTemplar]

Skinwalker's post pretty much sums up my feelings in this matter. Only, personally, I consider the EULA more a cover-their-asses thing that the software developers put on. Technically, for example, it's illegal for me to have a game installed on more than one of my computers, if I have more than one. However, I don't think that any sane corporation would persecute me for having a copy on my Stationary, and one on my Laptop. I think that this clause and many other are only there to make sure that there are as few loopholes as possible (the above example covers the off chance that someone might devise a shifty multiple-ownership thing with his computer that allowed him to distribute the software to everyone in the neighbourhood, or invent some equally imagineative way to circumvent the copyright).

 

But I don't really know, I haven't read an EULA for a looong time (seriously, they could write that the user was obliged to spend the rest of his/her life in slavery, and most people would sign anyway, methinks, because they didn't read it). After all they do fill the better part of two whole pages, most of them.

 

And the reason why Open-Source software has an EULA (mostly the GNU-General Licence (the one on Unix), is to prevent people from copyrighting it.

 

Oh, and

 

(I have high hopes that this thread will succeed in avoiding religious issues. )

 

GOD IS AGAINST EULAS!!!

[Nitro]

Originally posted by ShadowTemplar

But I don't really know, I haven't read an EULA for a looong time (seriously, they could write that the user was obliged to spend the rest of his/her life in slavery, and most people would sign anyway, methinks, because they didn't read it). After all they do fill the better part of two whole pages, most of them.

 

I know you're most likely joking, but I would like to point out that cetain things, by law, can't be placed in a software licence agreement. Contracted slavery is one of them.

[ShadowTemplar]

Originally posted by Nitro

I know you're most likely joking

 

Darn! Who tipped you off? No, actually I was just exaggerating (sp).

[AlzWisHum]

Originally posted by Luc Solar

Example: Yesterday I downloaded the latest Nvidia drivers. They had a"browse wrap" EULA pop up which stated amongs other things: You may not make any copies of this software you may only use it on a single computer blah blah blah .. this license will automatically terminate if you do not comply to all terms and you must destroy the software in your possession immediately..

 

So what's strange abut that? Well...how about the fact that the drivers can be downloaded FREE OF CHARGE from the internet where Nvidia deliberately has put them so that we could uppgrade our drivers! You can download them at any time how many friggin' times you want. Spend the rest of your life downloading the drivers over and over again for all Nvidia cares!

 

 

That's simple example of how such things are copy and paste. They must even put on the automatic packaging software (InstallShield, Wise ...), so the person who is in charge of making packages doen't even care anymore, just click "Next, next, next and finish".

[SkinWalker]

Originally posted by Luc Solar

But I do disagree about what you said in the end --> according to most (all?) EULA's the buyer does NOT get to own the media. He gets nothing but a "right to use". The JO CD is property of LEC, it's not yours. (yeah, I know - like they would sue you if you burn the CD & manual or whatever...but anyways >> )

 

I'm at work right now, and I looked around a couple of EULA's that I have here (including Micro$osft stuff) as well as a few online... I can't seem to find any mention of not "owning the media." I did notice the EULA of one of LucasArts demos made a comment about media, but it was in the context of images, movie files, sound tracks, etc. within the demo itself. I'll have to wait until I'm home to look at the JO EULA...

 

Perhaps you're right, but I think it's more likely that the "media" you read was referring to those files within the game. They don't want anyone creating other works based on their efforts. That's fair. If you spent hours or days on a project or work of art, you wouldn't want someone ripping you off by adapting your work to create something they call "theirs."

 

Originally posted by Luc Solar

This whole situation is absurd. Why not use the same way as they do with books, videos, or music? Slapping these silly EULA's with their silly terms all over the place seems just dumb

 

I have to agree with ShadowTemplar, it has much to do with covering-your-ass (CYA). I really think software EULA's are similar to the other media. You will see short statements in books, periodicals, etc. about "rights reserved, copies only with author's written consent, etc." Movies and music tend to have longer EULA's and software longer yet. This progression in complexity seems proportional with the ease with which copying can be done. Books aren't easy to copy. Movies and music are easier... and software... well one need only check

 

 

Kazaa, WinMX, Gnutella, or Morpheous

to see how easy it is. BTW... I hid those words with a spoiler since I think the LucasForums EULA says something about discussing those dreaded, evil applications

 

SkinWalker

 

Edit: Good topic of discussion, by the way. It's refreshing to discuss something non-religious

[Luc Solar]

Well here's one EULA I found, realplayer I think:

 

 

1.GRANT OF LICENSE. RN hereby

grants to you a non-exclusive license

to use the Software and any related

documentation ("Documentation")

subject to the following terms:

 

Oh cool! I found JO's EULA too:

 

"PROGRAM" INCLUDES ALL SOFTWARE INCLUDED WITH THIS AGREEMENT, THE ASSOCIATED MEDIA, ANY PRINTED MATERIALS, AND ANY ONLINE OR ELECTRONIC DOCUMENTATION, AND ANY AND ALL COPIES OF SUCH SOFTWARE AND MATERIALS.

 

So here we see that the term "program" referrs to not only the software but also the stuff that came with it, the whole box: everything.

 

And then it states:

 

Activision grants you the non-exclusive, non-transferable, limited right and license to install and use one copy of this Program solely and exclusively for your personal use. This PROGRAM is licensed, not sold, for your use.

 

How 'bout that! Careful with that box JO came in, people! Lucasarts may want it back some day...

[SkinWalker]

Originally posted by Luc Solar

So here we see that the term "program" referrs to not only the software but also the stuff that came with it, the whole box: everything.

 

How 'bout that! Careful with that box JO came in, people! Lucasarts may want it back some day...

 

Yeah... I see your point. But I still think that the thing they're trying to prevent is the use of the artwork on the box. If I create a website and use the JO artwork (as many sites have done) but without permission and with the goal to make a profit, then they have a reason to come after me.

 

I don't think they would be interested in fansites, fan-created wallpapers, etc., but rather those sites that cross the line to commercial enterprise. Fansites actually help business for LucasEntertainment by "branding" and recognition. I have a site on DeviantArt and I started to create some wallpapers based upon the StarWars theme. The norm (at the time) was to use movie captures and images to create movie-themed wallpapers. DeviantArt has since cleaned this up as it was a technical violation of their copyright/third party use policies. I got one violation and took down my other two wallpapers before they discovered them (LeXX wasn't as lucky...).

 

The bottom line is: if you help a company make money, they won't bother you. If you make money that a company doesn't get a piece of, they get p!ssed. I think that's the purpose of the EULA's: to offer a contingency that can be called upon in the event that they have to defend their products in court. As ShadowT. (I think) pointed out, even OpenSource software has a EULA so that the rights can be protected. NviDia wouldn't want someone to take their driver and modify it, possibly in ways that would be harmful to the hardware, since they could be held liable if there was no CYA.

 

Cheers!

SkinWalker

[lukeskywalker1]

Umm it would be pretty tough for them to find out that you did.

 

they could......

they could with regestration numbers and stuff like that. i think companies can scan your computer though.

 

 

 

The consumer can transfer software as long as it is clear that the consumer relenquished all license and the software is removed from the hardware it was installed upon.

 

yeah i forgot about that, u have to also give all documents that came with it too.

[Luc Solar]

I know what you are saying SkinWalker, but all those rights that you mentioned are protected by copyright. (apart from liability issues)

 

They got copyright. That's not enough. Why?

 

You buy a book, you get the book. You buy software that has a manual (=book) with it but for some reason you don't get the manual, you only get a right to use the manual. This is silly.

 

One funny thing about these EULA's is that 99% of them are against the law in one way or another. This is partly because they ship the software with the same EULA to 100 different legal systems/countries. Our consumers are well protected. Having f.ex a forum clause that sais I can only sue in Hawaii, means nothing.

 

When you notice that just about every provision in the agreement is more or less "illegal" you start wondering what the hell is going on. The software industry needs to get it's act together.

[ShadowTemplar]

I've also seen the part about having to hand over everything that came with the software a fair few times (back in the days when I still read EULAs). Still I agree with Skin (well, since he agrees with me that's not exactly hard), as long as you are making free promotion of the product, and not using it to make money, you're safe. Besides you have to have a heavy collection of illegal software if anybody is to get anything for nailing you (at least anything that won't be used up in lawyer salaries).

[Luc Solar]

Practically speaking that's true, but from a lawyers point of view there is no "grey area".

 

You can't say: "yeah well sure it's illegal or a breach of contract, but you can safely do that 'cause you won't get caught and no-one gives a **** anyways."

 

I for one do not accept agreements that are filled with bs. If you create an agreement, it's your responsibility to see to it that it's valid.

If you f.ex. use said agreement in different countries (=legal systems) you must amend it to fit the requirements in that country. It's not the consumers duty to try to figure out what is valid and what isn't.

 

You can't take a log and say: "It's an elephant! WTF is wrong with you, can't you see it? Just carve out all the extra wood and you clearly have a statue of an elephant there!"

 

The same goes for crappy shrink-wrap EULA's.

[SkinWalker]

I think many software companies also secretly count on piracy to help promote their product.

 

Think about it: where do most kids learn their skills at programs like 3d max, bryce, photoshop, autocad, programming languages, etc. These are VERY expensive products! If the kids learn photoshop and become comfortable with it, like it, etc., then when they get ready to work for a legitimate company or start their own enterprises, they're going to lean on the product they're most comfortable with.

 

I had a pirated copy of Word Perfect back in the early 1990's that I used and learned (that's back when word processors were actually complicated). When it came time to buy a Word Processor, there was no question which one I wanted. I would never have bought Word Perfect otherwise.

 

I also know of people who have done the same with Photoshop. There's no way an average 15 year old will purchase a $400+ program that they can get from a "free" source. The more kids that do this, the larger the "fanbase" of an application is. These are the lawyers, doctors, graphics designers, etc. of the future. So piracy, in a twisted sense and under the right circumstances, can be an investment to the company being pirated.

 

Although, I'm sure you will never see a software vender agree with that sentiment.

[Luc Solar]

X-box is a Microsoft product. Since I don't know anyone with said console, I have to ask you guys:

 

When you bought Halo (or whatever) did you find a license agreement, an EULA?

 

I know PS-games aren't licensed, but SOLD. What's the deal with Microsoft? Are they LICENSING the exact same game to PC users that they're SELLING to X-box users?

 

I'd appreciate any info on this subject.

[lukeskywalker1]

dont know, dont have X box. but when i had my N64, and other nintendo systems, they had liscence agreements. i didnt ever read them though.

 

micorsoft is weird...

 

once in a while, my firewall say one of my system files is trying ot access the internet, like right when my pc start up, and everything is loaded. if i click not to let it, it tries again, and again...till i click to to let it.

 

there jsut trying to get more money, thats all.

 

I think many software companies also secretly count on piracy to help promote their product.

 

hmm, good idea, but they will still sue you.

thats why some video game companies (lucasarts, Raven) allow you to make more stuff for the game. luke skywalker is copyrighted, as well as all the locations in those games, but they still let youy use them, in maps, and to make characters, stuff like that.

[ShadowTemplar]

Luc Solar: I think that I may have figured why the 'return-everything-that-came-with-the-product-clause' is added:

 

Y'see, they state that even if you return the opened package, you'll still get a full refund. They'll have to cover that refund themselves, since the shop most likely won't take back an opened package. So they want everything back. Why do they want everything then? Well, often there are several different packages of a product. For example, I bought Ground Control & Dark Conspiracy with an on-disk manual. If I wanted a physical manual, I'd have to pay double or treple the price (and would even have to buy the expantion seperately). Now if that clause was not there, I could, theoretically, have bought the expensive package, gotten the manual, started the installation, said 'No' to the EULA, and gone right back and gotten a full refund. Then I could buy a perfectly functional game for a faction of the price, and get the manual for myself. Sierra (who make Ground Control) would have to cover the difference out of their own pocket. I doubt that it would work, but they have to CYA themselves against it.