I linked for consumer directly above what you quoted - it's one section previous in the same area of UCC 2



Jonnan

I don't think I quoted you out of context - I just responded point for point, but heck I quoted everything you typed man - {G}.


Short answer - That would be for a court to decide, weighing the two competing definitions against each other - Conceptually a professional photographer is probably *always* going to be a merchant for UCC purposes if he buys photoshop whether he's using it at home or the office - he has that "skill peculiar to the practices or goods involved in the transaction" counting against him.

But for a game? it seems to me to be a fairly rough standard to create a category for "skill peculiar to the practices or goods involved in the transaction" that's going to pull almost any gamer into the realms of "merchant" if it is bought for home use. I suppose your example there of a CEO would qualify, or a game reviewer, and you *might* be able to make that argument for a developer - arguably Jafo and Frogboy may be bound by EULA's even for games in ways that I am not, or anyone competing in gaming competitions where there is money at stake.

There's a legitimate argument for a judge to decide there - but if you're talking about a person, the default view is going to be to assume they're a consumer and to prove otherwise if you want to hold them to an EULA - for some people that will be easy to prove, for others the court will be annoyed that you wasted their time with this. But the lawyer trying to enforce the EULA will have to actually prove that the plaintiff is a merchant.

Jonnan

I think that would have been established since he was selling the bot. sales+distribution typically= merchant. especially if he has been known to sell hack and bot's in the past. It could be concluded that he put him self in the merchant position once he started charging for the bot.

Also...Buying a CD does not buy you the contents of the disc as in terms of ownership. you buy a Physical CD with digital media that requires an agreement to terms of use. you Physically own the CD not its contents. You can set the CD on fire or turn it in to a frizbee, BUT you can not use the digital media written upon it as you wish. Use of the media and its abilities falls under a license which you must agree to before use. you buy the CD you do not buy the source code nor any derivative of the media contained on the Disc. You are not given free reign to do with the contents as you wish. Just as with DVD movies or Music CD's. You own the disc NOT the CONTENTS.

Any body whose not been living under a rock for a bit Knows there are term agreements to almost all software currently out there. So it falls under common knowledge. Every bit of software ive installed that I can remember in the last what 5+ years? you have to at one point or another Click "agree to EULA AND/OR TOS" to install section in the installer. I know WOW has one. As well as there is stipulations to said terms on the outside of the BOX, thus giving the purchaser a preemptive knowledge to the existance of the terms before they purchase, as well as offer the reader a web site to go and read the EULA AND TOS BEFORE any cash has exchanged hands.

So claiming foul after digitally signing a contract is moot at best. read before pressing the go button.

Any one who click the EULA and TOS agreements before reading them. Has digitally signed a contract with no knowledge of it's contents. And yes your digital signature by clicking "I agree" etc.. Is Binding. Whether or not, you read the contracts and the stipulations of use there in.


Im still scratching my head as to how they chose this course of action. A bit of a stretch IMO.. I would have set it as one heck of a Civil Contract Breach case. As he had to digitally sign the EULA AND TOS to be able to access the necessary bits of data to build his bot. Even If he used no part of the actual Code source he agreed to the terms of the afore mentioned items to be able to see how to build the bot. In terms of game structure and server feeds, and necessary knowledge. etc to run the bot etc. ( IE he had to run the game and find out how it worked to build the bot). Either way he is in breach of the terms, and has left him self wide open for litigation of monitary loss. Blizzard could possibly take him for every $ hes got and then some.


I do however reserve the right to cheer that a cheat provider was plugged. Even if the way he was nailed is as perplexing as all get out..

This merchant/consumer 'issue' is utter crap and meaningless in the extreme.

I eat...and I cook...ergo when I go to Macca's I'm a merchant, not a consumer?

As the English would say....'bollocks'.

Is this yet another case of the recently educated determining getting into/out of University means all is now known...on all topics?

You get this a lot.

The older you get the less you will realise you know.  One of the things you learn 'more' is the extent of your own ignorance.  I know I do...

Um - first of all Jafo, I'm not quite 40, so I'm no more a kid just out of college than you are, and that attitude that having studied something so you know wtf you're talking about means you think you know everything is in my experience a really nifty way of avoiding being responsible for holding informed opinions.

Informed Opinions are *not* like assholes, 'cuz most people *don't* have one.

Now, in Australia it may well *be* meaningless crap (actually, I kinda doubt that since a lot of American UCC code is codification of Old English common law, but I have no idea what the Australian equivalents would be), but in the U.S. yeah, it makes a major difference.

Lastly:

Is there any way in hell you pulled that from a discussion regarding the definitions we have here? When the heck was the last time you went to Macca's and were presented with a frick'n License Agreement anyway?

First time I've ever heard of trying to split the tip with a strawman argument.

Jonnan

Problem in that they never established MDY as a customer of Blizzard at all. In order to make this logic stick that he was contributing to infringement, they had to assume that *every* Blizzard customer that bought Glider was already bound by the EULA. As merchants they arguably would be, as consumers they would not be.

Umm - actually here you are wrong, as a matter of law. You *own* the copy, and you receive as a matter of law the right to use the software on it as required for regular use and archiving.

What the judge said is not that Blizzard still owns their software. According to this ruling - Blizzard still owns the physical CD the software came on.

You really should read the thread before jumping in - this has all been gone over.

Umm - NO, it's not. There are very specific provisions about what makes a binding sales contract - all with links to the specific definitions of merchant, consumer, and where it says that consumers are not bound to contracts simply by being notified that there is an EULA.

Honest to god, I'm going to end all my messages with a .sig that says anyone that thinks EULA are binding owes me a quarter for the privilege of reading my posts By posting after me in a thread you acknowledge you have read my post. It's just as binding and has as much consideration involved.


The problem here is that the DMCA specifically allows for reverse engineering programs for purposes of compatibility. He was allowed to do this.

Why you would cheer that a cheat provider was plugged in a way that is going to end up biting you in the arse like this is beyond me, but you appear to have plenty of company.

Jonnan

So you're saying MDY was able to reverse engineer parts of WoW to make Glider, test it, and continue to revise it as Blizzard changed detection capabilities - all without using a single copy of WoW. Damn, that guy is a good programmer.

In reality, MDY got multiple accounts banned in these efforts, and they admitted so in their depositions. This bit of information simply didn't get mentioned explicitly in the ruling.



That's fine, as long as you have warnings in the topic title, have a full text agreement we actively have to agree to before we see your content, and collect information on each reader for enforcement and billing purposes.

That, and generally the website owner holds the rights to user posts. There are exceptions, but they are rare.



They have him on the hook for that as well. Namely, Tortious Interference with Contract. Even Jonnan will admit the Terms of Use establishes a valid contract, exchanging the player's agreement to Blizzard's rules for access to their servers (as compared to the EULA, which adresses the player's access to the contents of the disc/their own hard drive). The damages for the contract interference alone are likely to bankrupt MDY, but not Donnelly himself, as MDY is a limited liability company.

What confuses me is why Blizzard did not pursue criminal charges. Certainly any Glider user who got banned and bought another copy to continue using Glider committed fraud (entering a contract with the intent to break it). While this obviously couldn't apply to every Glider copy sold, even 10-15k counts of fraud and conspiracy to commit fraud would end Donnelly's career rather permanently.



This would depend on how you define "independently created computer program". Given how intregral the WoW program was to the development of the Glider program, this is not obvious. Ironically, this defense WOULD be allowable if a third party were to alter the Glider program to make it compatable with other MMOs.

The reverse engineering allowances were emplaced to shield people who make wider programs, such as game companies when they insure interoperability of their program with various operating systems and/or component drivers.

The part of the DMCA Blizzard claimed was violated was the provisions against selling technology to circumvent program access restrictions. Since the entire WoW program could theoretically be read bit-by-bit off of a hard drive, the Glider program doesn't qualify.

What I find truly ironic is that MDY didn't sell the Glider program, they licensed it under its own EULA! And had a pretty draconian phone-home DRM scheme added onto it, as well.

I'm saying, under the rules set forth under the DMCA, reverse engineering a program for the purposes of compatibility is *expressly* allowed. You, me and MDY, are *all* allowed to reverse engineer someone else's program for the purposes of ensuring compatibility.

Note that this was one of the summary judgments he, ah, won.



And I don't intend to attempt to hold anyone that believes you need those things for an EULA to be effective to my EULA. Only those of you that seem to think that it is a perfectly sane interpretation of the law that having a warning on a box that there *is* an EULA should render that EULA binding, sight unseen, upon buying a product.

That *is* what y'all have been fighting so hard to make sound reasonable at the end of the day. So, just be aware, I have an EULA attached to my posts. Reading or Responding to my posts indicates acceptance of that EULA. I will tell you what that EULA entails when I feel like it.

Sure it's stupid and crazy, but no sillier than arguing that putting a license agreement 'warning' on a box renders it binding.



The TOS may have been binding - being a separate contract, and having monies change hands during that contract, it's more like one of those utilities contracts - arguably it's a separate contract every month, and buy continuing service with the Utility, Bank, Credit Card Company, et al, you are indicating acceptance of any changes they make in the contract from month to month.

So interference with contract is a valid argument - there are still valid issues with enforcing it - for instance, if the Terms of Service stated that Blizzard owned the CD (physically), then then terms of service was exchanging a service (access to the WoW server) for monies (your monthly bill) and other consideration (ownership of the CD). UCC 2 contracts are typically balanced towards money, ina nd of itself, being the consideration on one side - Some courts have held that once you're dealing with money and other considerations, you're back out of merchant contract land and into UCC 1 territory again.

But there's been variation on that, and case law varies. In any case, although I think Blizzard has a valid claim for interference in a contract, it's an entirely civil matter - it's not a crime at all. And the fraud is entirely on the Blizzard customer base - interference with contract is all that they could throw at MDY.



Umm - the legislative history doesn't back you up on that - Driver compatibility was one of many things that were discussed when they setup the reverse engineering exception. They were pretty definite that what they *didn't* want was to legalize reverse engineering things like logon protection schemes for breaking into bank accounts, those kind of security issues.

But at the end of the day, that was never what Glider did - people used the valid logon to access the WoW server - Glider simply piped information into the io stream that sent commands from the keyboard to the WOW client.

Jonnan

OK...12 pages on and have we any results/conclusions?

 

.....other than Jonnan001's decidedly shinier fingertips?...

 

The fun part is none of this will change anything, other than making someone's dull day a little less...

cheats cant be illegal on other pc games...
the game makers put them in
sins doesnt have any though

Meh - if I can get a few gamers to realize they not only have rights, but that you can actually prove it in a court of law, I will name the calluses on my index fingers in honor of Willythemailman and consider it time well spent - .

Jonnan

Good luck, people seem all to willing to give up their rights now and it extends well beyond games and copyright.

I'm just not willing to demand 'rights' that some believe to be 'mine' when they adversely impact on the rights of others.

Copyright, TOU, EULA, et al is to protect the owner.

Purchasers/users can vote with their feet if they feel the owners' rights fuck them over and simply avoid it/them.

That's this whole issue in a nutshell.

If Blizzard wants your balls if you do not abide by whatever rules they apply...then they should be entitled to them.

They will never get mine...as I will either abide by their rules...or not purchase the game.

If you'll reread the decision, the count of DCMA violation involved traffic in illegal decryption technology, not reverse engineering. MDY correctly won that ruling, as the entire game is contained on the disc. If even one file necessary to run the game had been hosted on the servers the result would be different, because Glider would be circumventing Blizzard's access controls. As it is, the entire game could be read directly off a hard drive without running the game.

In this regard Glider violated the intent of the law, but not the letter.





Well then I'm fine, aren't I? The EULA isn't binding at the moment of purchase, it's binding when you agree to it during installation. Otherwise they couldn't rightly call it an End User Lisencing Agreement, now could they? Enforcement from purchase would be silly, as there's no guarrantee the person who paid for the box is even going to BE the end user, is there? What happens if someone buys it for someone else?

Have you ever had a golden Google moment? I was trying to come up with the 6th Circuit decision that declared shrinkwrap agreements invalid (simply opening the package bound the consumer) but allowed clickwrap (notice outside the box, full terms within/online). Instead, I get the 7the Circuit case of Procd, Inc. v. Zeidenberg, which you can read in full here. In the written decision, the judge(s) not only reverse but mock the district court's decision to rule the EULA nonbinding. One of the pertinent parts:



Due to the preceding part's length, I'll sumarize the rest of my answer to Jonnan. If you read the MDY case again, breach of civil contract isn't a possibility, it was the basis of MDY's defense!



And I agreed with you on the RE for compatability for things like drivers. No, wait I didn't, I said it first and you disagreed with me, then stated your position as exactly what mine was.



I realize I have rights. What we don't agree on is whether game companies have rights, and how those two conflicting sets of rights interact. And as for proving it in court, see the Zeidenber case I cited.

The name's Willythemailboy, thank you very much. Apparently no one's realized where it comes from, or the mindset it implies. It is a pretty obscure reference.

Hah! From just before I became a regular Dilbert reader. But how the heck would you describe a Dilbert mindset? To me, the strip is some sort of powernerd cross between Cathy at the office and Pogo on heavy psychedelics.