There's a funny opinion most Americans seem to hold about the First Amendment - namely that it a universal right to free speech anywhere. It is not - it is the freedom from GOVERNMENT interference with free speech. If a private entity wishes to restrict your speech on their property, they have the right to do so. Your only remedy as a consumer is to not use their property. This argument comes up on web forums like this all the time, there is absolutely no question of the answer.

Unless you are asserting that Blizzard cannot exercise its rights on its own servers, you cannot strip Blizzard of the ability to terminate a person's use of those servers for any reason it sees fit.



The legality of Glider is not immediately obvious. It can be viewed as a copyright-infringing derivative work by the fact it cannot be used except in conjunction with WoW. Your entire case fails if this is indeed ruled infringement.



Assuming this legally qualifies as infringement, he *is* legally liable for this. His program allows the infringement, he has control over whether the infringing acts continue, and he is profitting from the infringement. Whether he committed each act of copying is irrelevant.

You sir, are just flat out stubbornly wrong.

§ 117. Limitations on exclusive rights: Computer programs


If you own a copy, you are amazingly enough, allowed to make copies for purposes of using the program. No special license required.

There seems to be some weird thing in this thread that the law here is somehow complex and esoteric, and god knows sometimes it is, but on *this*, it is written here as plain as day.

Is looking stuff in Google up *that* hard?

"God - I would like to file a Bug Report."

Jonnan

That would be more interesting, if it had anything whatsoever to do with the conversation at hand.

Please look back through the thread - Looking over this, no one here has contested whether or not Blizzard has the right to disconnect an account for violating their Terms of Service.

The question is whether or not "Glider" Violates Blizzards Copyright. It doesn't do so directly, and I think there are fatal, and fairly obvious "The Sky Is Blue" flaws in the case to say it causes contributory infringement.

You pulled this quote out of context from the long, drawn out, annotated, and referenced post in which showed *why* that opinion made no sense. You could argue that I don't understand the UCC law that I referenced, or that I don't understand the copyright law that I referenced, and show how I am wrong - you are in fact welcome to do that.

Which makes me wonder why, exactly, you assert that I made an argument that no one in this ten page thread has made.

You are rapidly going for 'twit' status.



The legality of Glider *is* immediately obvious, for the simple reason that the legality of *anything* is immediately obvious - there has to be a law actually against it for it to be illegal. That's the default - if there's not a law against it, it's legal.

So, for Glider to be *illegal*, it has to do something (or be designed specifically for it's user to do something that is) that is, in and of itself, *against* *the* *law*.

It's not against the law for software to interact with other software - I defy you to reference a law that says it is.

It is not against the law, perhaps sadly, to 'Cheat'. Therefore, enabling someone to cheat is not against the law.

It is not against the law to run a program you have paid for - I will post that again, since some people don't seem to get that fact


Therefore, even if Glider ran the WoW program on your behalf, it is still not doing anything *illegal*.

Now - if you can provide something that Glider does that is arguably illegal, then you're comment "The legality of Glider is not immediately obvious" makes sense - but interacting with another program doesn't make a program "derivative Work".

You don't *want* interacting with another program to make a program "Derivative Work" either - dear god - think about it for a half a second please. Every program you have ever used would be illegal


We established this - again, you pulled what I said out of context, in this case deliberately acting as if I had said the exact opposite of what I posted - Sir, you are dishonest.

Contributory Infringement is a crime - but for this to be contributory infringement, the court has to make two separate nonsensical judgments that deprive me of rights under the law - depriving me of consumer protections under the UCC and standing § 117. Limitations on exclusive rights: Computer programs on it's head respectively.

If you can come up with a way for Glider to be considered contributory infringement without these two bits of nonsensical stupidity, then you are evidently a better lawyer than either the judge *or* Blizzards attorneys - go for it. Or show how I am wrong about what one of those says.

But please, actually read what I said and quit twisting it - The only good thing about this judgment is that it is an easy to read, straightforward opinion. It's bloody *easy* to see where it contradicts the law, it's *easy* to find the relevant law and lay it out, and I went to trouble bordering on obsessive compulsive to reference it all in the posting.

I could be wrong of course, but it not like I didn't give you all the information required to prove I'm wrong - use it.

Jonnan

I for one am glad you are borderline obssesive compulsive cause I have been trying to get the to understand the same thing and gave up!

Special emphasis on the important words. The court ruled in this case that we are not owners. We are licensees.

Jonnan001 - your entire argument is based on the assumption that possessing a copy of the game qualifies as ownership, which this case specifically struck down. If a user does not qualify as an "owner", any copying of the game, including what is necessary to run the game is infringement. This is not even the first case to make this ruling.

The court specifically examined the protections given by section 117, and ruled Glider users DO NOT QUALIFY for such protections.





It IS as plain as day, but you somehow got it wrong anyway. Good job.

Specifically, the UCC section 2-106 defines a sale:

A "sale" consists in the passing of title from the seller to the buyer for a price (Section 2-401).

The referenced section 2-401 point 2 states:

(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods.... (empasis added)

Thus under the UCC transfer of a copy does not entitle the holder of a copy to "owner" status, as the holder explicitly agreed they do not hold such ownership.



You are, and I did. You are now in good standing for ****ing moron status.

While he does not explicitly state it, psychoak's position that all EULAs are uninforcable does imply this. The Terms of Use which allow Blizzard to terminate accounts are contained in the EULA, which he holds as invalid.

Wrong. Blizzard owns their own servers. Terminating your access does nothing to your copy of the game. It is completely irrelevant to the concept of copyright, you're a virtual guest on their virtual property doing something that gets you banned from it. They can do whatever the hell they want with their own servers, it's the risk you take in buying a game that requires one. If they practiced fraudulent activities, such as selling WOW to millions of customers and then shutting down their server, you'd have excellent grounds for a class action law suite.

"
It IS as plain as day, but you somehow got it wrong anyway. Good job.

Specifically, the UCC section 2-106 defines a sale:

A "sale" consists in the passing of title from the seller to the buyer for a price (Section 2-401).

The referenced section 2-401 point 2 states:

(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes performance with reference to the physical delivery of the goods.... (empasis added)

Thus under the UCC transfer of a copy does not entitle the holder of a copy to "owner" status, as the holder explicitly agreed they do not hold such ownership."

Your logic is wonderful here as well. You don't see the error? The physical delivery of the goods takes place when I go to the store and exchange legal tender for the box. There is no agreement made beyond the sale of the physical goods, at best there is a mention of a license being enclosed, most don't even have that. This is why it's fraud to enforce restrictions in a license revealed post-sale, and why both you and that idiot of a judge are equally inept in reading comprehension.

Cobra, I stoop to personal insults because your idiocy is boring me and I need to amuse myself to work up the motivation to explain why. The court can rule whatever the hell it wants to. It's wrong, I own all software I purchase that does not have the contractual obligations agreed to at purchase, a law degree isn't needed to see it. Intellectual dishonesty is the only way to avoid the truth when it's so plain to see.

If you honestly think enforcing an EULA constitutes fraud, contact your local state's attorney immediately. Fraud is a serious charge, you should have it addressed.

As for your class action suit, that might be possible if the servers were shut down overnight. If Blizzard were to give reasonable notice before shutting down, there would be no cause for action. I love how you consider anything a user does as legal, and anything a company does as fraud.

For that matter, the class action view goes directly against your stance on copyright. Their servers are theirs to do with as they will, as long as they stop billing you when the servers shut down. It doesn't affect your copy of the game at all.

Legally, there can be no sale unless both parties agree to the transaction. Clearly Blizzard does not agree the transaction is a sale of "owner" interest in the copy, they are selling you a license to use the copy. Blizzard has done everything in its power to indicate the transaction is NOT a sale.

Also, you would need to defend this assertion against this possible interpretation (please note this is a POSSIBLE interpretation, never actually addressed in any court AFAIK):

"The seller (Blizzard) contends physical delivery of goods occurs when the purchaser installs the software onto their computer, not at the retail store. The UCC specifically allows for transactions where transfer of funds and physical delivery of goods are not simultaneous...."

Under that possible interpretation of a sale, the conditions of the license would be presented when the transaction is finalized. I'm not saying this argument is valid, as far as I know it has never been used. That doesn't mean you don't need to have a counterargument ready for when someone does eventually bring it up.

You guys are so *very* determined to give up your rights without blinking an eye.

Let me be clear - I *addressed* the fact that the court ruled otherwise. I think it is flat out wrong on the face of it and will be overturned. I will also emphasize the important words.

So, the copyright is the intellectual property. The Copy is the physical medium, the CD or DVD.

The Owner of the copyright can license his copyright, and buying a copy gives me the right only of owning that disk or copy. However, I *do* own that disk or copy.

This paragraph giveth: Only the copyright owner has the right to make copies of his product. Once he has made a copy of course, I can buy that copy.

This paragraph taketh away: As owner of the copy - THE MATERIAL OBJECT - I have the right to make a copy, in the regular method of making an archive or for standard use on the computer.

This is the paragraph the judge say does not refer to me - that Blizzard actually own's that copy - Not the copyright, but the physical copy of the disk. But that doesn't make any sense in context - this paragraph is clearly labeled as a *limitation* on the exclusive Rights of the copyright holder - so the judge is stating in this opinion that congress is depriving the copyright holder of rights and awarding those rights to the copyright holder.

Now, if this weren't, say *defined* somewhere in the copyright act, it's just possible that the judge might get away with this sleight of hand - but it is - *twice*.
The original definition of 'Copy', and *again* where Congress went to the extra trouble of clarifying for the really determined the difference between owning the copyright and owning the copy.

This ain't that complicated guys - the judge ruled in his opinion, that Blizzard owns the physical DVD or CD - the only way you can not have permission to run the program, once you have bought the CD, is if Blizzard still owns that CD!.

Somehow, I don't think that's gonna withstand judicial review.

Jonnan

Oh for pities sake - you really like that "Quote out of context" trick don't you.

Note: If title to the goods is not passed, or is not the *intent* of the contract, we're out of UCC title 2 territory - and the simplified provisions of a sale of goods *do* *not* *apply*. We are in *Full* contract law territory, where an EULA doesn't pass even basic muster. This becomes important in a minute.

Aren't those other provisions interesting - because, what they make quite clear is that the note in part two isn't about *whether* title passes, but *when* title passes. It either passes at the moment the sale is cleared, *or* it passes at some other specific time. If we're *not* passing title (And to be clear, this is title to the physical goods, in this case the DVD/CD - not the intellectual property contained on it), then we don't have a sales contract.

So how do I know that title passes?
Well - the UCC committee was kind enough to provide me with a definition

Good thing to, because to form a contract like an EULA you have to have six things -
Offer - Some one offers you a good or service
Acceptance - I choose to take them up on it
Mutual Assent - We've verified that both of us are happy that I understood the terms etcetera.
Capacity - I am an adult, not drugged, etcetera
Consideration - We exchanged goods, services, money et al
Legality - Nothing was done that violated the law

And that's where this becomes really important - because the definition of Offer, Acceptance, and Mutual Assent are, for the sake of convenience, MUCH easier in a simple sale of goods than it is in the rest of contract law. Among other things - I can *never* accept an offer without actually communicating that fact to the people that made the offer - not in full contract law land - I gotta call them, or in the case of a formal contract, *SIGN* the damn thing.

So, if we're *not* transferring title, then the EULA can't be valid, in which case, we're transferring title.

So much for that theory. Am I still bound the the other portions of the EULA if I've bought the item and accepted it when I installed.

Here is the *only* place this actually gets complicated - because it depends on whether or not I'm a merchant or a consumer - and that depends on what's being bought and sold and how I intend to use it.

Because it fairly easy for me to accept a sales contract as a consumer, and absolutely easy for me to do so as a merchant between merchants.




So, the short form is that is you are using it for personal use, you are *probably* a consumer. If you're buying it for your business, or it's important enough that you hired a specialist that does 'this sort of thing' you are almost certainly a merchant.

In the interests of brevity ("too fuckin' late for *THAT*" I hear you cry), despite the fact that I fully expect Willy to pull something out of context again, the differences between consumers and merchants is listed in about eleventy-hundred spots in UCC section 2, and I refuse to list *all* of them. This is the important one for our purposes.

There are a bunch of other differences between merchants and consumers, but this is the one that make EULA's non-binding *ON CONSUMERS* according to most courts (including the ninth). The 7th and 8th circuits have found that an EULA forms a separate contract, *after* the sale of the goods, and accepting it during an install means you've formally agreed - I think this is bad logic - if it's a separate contract, there has to be separate consideration, but SCOTUS has never ruled, so it stands for the moment in these two districts, and is a non-binding precedent anywhere else. And of course Maryland and Virginia actually signed UCITA into law, so if you live there you're just screwed - tell your legislature to fix that.

But the other districts have found that the EULA is a modification of the sale contract, which means it is *binding* upon merchants but must be separately signed by the consumer - just unwrapping it and installing the program is insufficient.

Which is why it is binding upon police departments, but not World of Warcraft clients - when you buy 4,000 licenses for your police department, yeah, you're a 'merchant', when you buy a single copy of photoshop - if you use it professionally, then you're a merchant.

I suppose Blizzard could even make an argument that if someone uses WoW to make a living from, *they* could be a professional, though it's an awfully weak argument to prove. But the vast majority of people, outside the 7th and 8th districts, Maryland and Virginia, are *not* going to be bound by that EULA.

So - We are now into "If you're that determined to think you have no rights under the law, go for it territory" and for those that want more information, I recommend Business Law with UCC Applications - My university class was taught by a shark that walked like a primate out of this book (10th edition), and it is really good. I will manfully swallow any "I know you are but what am I" Impulses - I called him a twit, he called me a moron, and at least we're arguing about merchants versus consumers which actually *has* split the district courts.

All that said - No, the UCC protects you from this kind of a modification to an agreement after you bought a game, shrink wrap be damned - Impulse (where I had to accept before downloading TA) actually has a much stronger case than anyone that sold it in the box.

Jonnan

It's 'pity's' ....think possessive ... ....

The sad and sorry reality of becoming a tad verbose in argument is the guaranteed result of the glazing-over of the eyes of the audience.

God knows how an issue of whether Blizzard's rights were being violated by some bot-maker/seller became a tome/dissertation on what defines a 'merchant' but I suggest someone has gone quite AWOL with the topic....

Oddly enough try treading the side of the WOW box.. It does say you must agree to the EULA and TOS agreements to licence the contents, or somthing to that effect ( i am currently at work and not privy to the exact wording) and if you do not want to agree to them then Blizzard will reimburse you for the Game. ( i am currently at work and not privy to the exact wording)( I have the game boxes at home) So the "post sale" Argument is moot

If you think I've quoted something out of context, point it out and point out exactly what the context should have been. I refuse to quote your entire response (which took you two posts to get all of it in) before I can get a word in edgewise. I will make an effort to include more useless crap, though. My usual style tends to be more succinct than most legalese, so I will try to make an adjustment.





No, we are intelligent enough to know we never had those rights to begin with. Calling this "giving up" rights takes a specific form of self-deception.

Re: TITLE 17 > CHAPTER 1 > § 101. Definitions - Definition of a copy is stipulated. I won't argue this.






This would be true, IF AND ONLY IF Blizzard agreed you had purchased the disk. You are licenced to use the disk, but you do not own it - on this, the judge agreed with no fewer than 3 preceding cases, none of which have been overturned.

Re: Section 106:



You probably CAN, but this ruling (and others!) say that you in fact DID NOT.

Re: Section 117



This interpretation, which you call "sleight of hand" is accepted practice. While this particular case has not yet been subject to review (or even a full court hearing before three judges, more on that later) previous cases have been reviewed and not overturned. Whether you personally agree with it or not, this *is* accepted law.

As for this particular case, it is important to note that is not a full court decision, it is SUMMARY JUDGEMENT. This is the point of a case where knucklehead stuff is eliminated so the full panel's time is not wasted on stuff one side or the other cannot possibly win.



From this, the judge has decided that the law is so entirely on one party's side as to preclude any other decision in a full hearing. Note that the summary judgement did not go entirely in Blizzard's favor, specifically the DMCA claims. Other parts had summary judgement denied, so they could be heard by a full panel. All of this ruling can be appealed, but no such appeal has yet been filed (it's been less than two weeks, after all).

Re: Title 2 concerns

I'm glad you acknowledge that the lack of a sale eliminates all relevance of Title 2. The only reason I brought it up is as a negative; title does not necessarily pass when currency is exchanged. Beyond that, it is irrelevant.

Re: Merchant versus Consumer

OK, I give, there's no way in hell I'm going through that in any way you won't attack as "quoting out of contect" and then not back up, so I can only give general comments.

First, the difference between a merchant and a consumer was not even brought up in the Wall Data case. Neither side mentioned the word even once. Are you saying that a "consumer" who bought one copy (strictly for personal use) then decided to install it on 5 different computers would NOT have been infringing? That seems a bit unreasonable to me.

One point I will quote and require clarification:



Please site the specific case, especially in the 9th circuit, where an EULA is nonbinding on consumers unless physically signed. Every case I've read has held a click-through licence is sufficient, including this one.

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

That's the exact wording on the box. The argument is that the EULA is nonbinding as the complete terms are not available at purchase - although they are, if the customer put even minimal effort into looking up the EULA before purchase, but that's personal responsibility and no one likes that.