Not to bring this discussion back to the original case or anything, but has anyone besides me read the motion for injunction and MDY's response? Despite the ruling against MDY, they have continued supporting and selling Glider. Blizzard asked for a permanent injunction for MDY, donnelly himself, or anyone associated with the company to:

1 ) shut down the phone-home server than MDY uses for its DRM protection. Disabling the server would stop the secondary infringement nearly instantaneously, but MDY hasn't done it, and refuses to.

2 ) stop further development of Glider. Since the ruling, MDY has continued to update the program to match Blizzard's countermeasures.

3 ) prevent MDY from selling or transfering the source code to others so circumvent any court order to cease and desist.

4 ) assisting any third party from developing similar software.

MDY's response basically says:

A ) the ruling did not apply to anyone but the MDY corporation, not Donnelly personally.

B ) MDY's continued operation does not harm Blizzard enough to warrant an injunction before a final ruling.

C ) Blizzard delayed too long before asking for an injunction, so a few more months won't hurt them.

D ) WoW has clearly prospered in spite of Glider, so the effect of glider must be minimal.

E ) Glider may actually increase WoW revenues.

F ) Glider is not the only bot program available, but it is the only one being singled out for legal action.

G ) Blizzard knowingly allows people who have gotten accounts banned to start new ones.

H ) MDY has sufficient resources to cover any damages likely to be awarded if Blizzard wins.

I ) MDY needs the income from Glider to pursue this legal action, and any appeals which may result. Wait, what?

J ) MDY would be unlikely to recover its business, even if the injunction is lifted after a few months.

K ) MDY's employees would suffer hardships far more significant than Blizzard's losses by continued operation.

Even more, MDY asks the court to limit the scope of an injunction should one be issued to not include:

I ) further development of Glider, as further development doesn't infringe anything if they don't release it to their users.

II ) transfer of the source code to others, as doing so would not be in MDY's interest anyway.

III ) the sale of the underlying technology, as it could be used for other purposes.

IV ) assistance given to others to develop similar software.

Seeing as I've run out of numbering systems, I'm glad that summarizes the motion and response. Overall, I'd say MDY has the better case in terms of the injunction. Blizzard waited months to sue them, and nearly three years to ask for an injunction. That kinda shoots the immediate necessity of the injunction. That's what Blizzard gets for trying to handle the bots themselves, rather than suing the instant they found out. D'oh!

Anyone interested in reading the full text can find it here, as links #84 and #85.

http://news.justia.com/cases/featured/arizona/azdce/2:2006cv02555/322017/

So you ask the person at the store, call the company, or go to the company's website. What do you want, the entire box plastered with the EULA so you can't see the title of the game you're buying?

5% is quite a bit. Most people don't report problems.

. . . so complain about the drop rate, don't write or use a bot. In any case, WoW's drop rates aren't that bad.

Yeah, and they're spending loads of money too. You think their servers are cheap? You think Diablo III and Wrath of the Lich King were designed by volunteers? That money goes back into their products.

It's the basic principle of economics - money is exchanged for services and goods. It's also a basic principle in most religions - "thou shalt not steal."

Whining about how big/small the loss is doesn't change the basic principle. A thief is a thief, be it a candy bar or a luxury automobile.

Yeah, apparently they have no troubles buying new accounts and using the bots again.

Mutliply that by a few thousand and one "insubstantial and correctable annoyance" becomes a real problem.

I believe the point is to get people to play their game . . .

If you want a two day game, maybe you shouldn't be playing a MMORPG.

Yeah, the point is that you play it a long time.

If you don't like it, don't play it . . . sounds kinda simple to me.

If you want a MMORPG that's easy to get to max level, you can play Guild Wars. You don't need to play WoW. And it's not any more ethical or legal to use a bot because you hate the game.

I think all of this stupid talk about the government blah blah blah is really just because you hate the game, not because you have any sort of real legal or ethical point.

Heh, I think that's kinda the point here . . .

Asking for an order to prevent release of the source code seems to be something new. Blizzard really seems to be worried about this bot.

That's part of the point, but MDY is correct in arguing that a temporary injunction that destroys their buisiness is overkill, considering how long the current situation has lasted.

As for the sorce code, remember that Glider is so much more effective than other bots due to the fact that they stole the source code for the Warden program to make it. No one else has that, and Blizzard doesn't want it getting out.

I think you're assuming a lot more ambiguity in contract law than is actually there -
§ 2-103. Definitions and Index of Definitions."(k) "Goods" means all things that are movable at the time of identification to a contract for sale. The term includes future goods, specially manufactured goods, the unborn young of animals, growing crops, and other identified things attached to realty as described in Section 2-107. The term does not include information, the money in which the price is to be paid, investment securities under Article 8, the subject matter of foreign exchange transactions, or choses in action."
-and-
§ 2-501. Insurable Interest in Goods;  Manner of Identification of Goods."(1) The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers even though the goods so identified are non-conforming and he has an option to return or reject them.  Such identification can be made at any time and in any manner explicitly agreed to by the parties.  In the absence of explicit agreement identification occurs

(a) when the contract is made if it is for the sale of goods already existing and identified;"

So, if someone hasn't told you explicitly that you're not buying the physical object you think you're buying, then yeah - that's what you're buying. The law is unambiguous on that point - not even the usual disclaimers for "between Merchants" or a consumer in that section, so it's still either 2A) or 2B) - the EULA isn't a sales contract inandof itself or anything weird.

Actually - if I'm reading the definition of 'goods' right - a standard sales contract *can't* sell you a 'license' in and of itself, because it can't sell information, only 'things movable at the time of identification'. But I won't swear to that.


Allow me to rephrase then - I have problem with *this* legal solution, that of attempting to bypass the legistated law by creating a binding EULA that can arbitrarily render any given action of the buyer a breach of contract, regardless of the legality of the action.

If the merchant want's to render the EULA binding, they have options available - for instance they can have, y'know, a signed contract at time of sale - I used to sell exactly that for Cell Phone and Satellite Providers when I was still woking through college. Seemed to work fine for them.

Or they could decide they don't need this that badly, and reduce the EULA to waivers, as is allowed under UCC 2.

They *could* even come up with a very limited rewrite of the UCC paragraphs on this that allowed specific limitations on third party programs that were designed to unbalance a game environment - similar items have happened before. The problem with something like UCITA was that is was a naked powergrab, and after people saw what it allowed (Basically exactly what I've been saying scares me about this) people stopped it in other states, but a more limited rewrite to fulfill a more limited need - no problem.

But this doesn't work for me, and I'm not sure why others seem so happy about allowing it - enforcement of an EULA that disallows Glider regardless of whether Glider is legal, means enforcement of EULA's that disallow *any* action inconveneient to the software manufacturer.

People have actually *agreed* with that interpretation, and still defended this interpretation as being a *good* thing. I'm not sure I can understand that.

Jonnan

You keep pulling out these apples and oranges comparisons and throwing them out as being somehow relevant. Why?

Of *course* mortgages and such are enforcable. Maybe you've never done a mortgage or a bankruptcy or a loan, but my home mortgage had a PhD thesis worth of paper, a realtor to answer every question I had, two lawyers. Hell Willy, my *lease* before I bought my house was five pages with me initialling relevant paragraphs.

Yet you keep bringing out these as being somehow relevant to a sales contract where you bought something at a store.

Willy - Yes or No question to you.

Does the UCC offer definitions for "Consumer" and "Merchant"? Yes or No

Does it then state that there are specific requirements for a modification to a sales Contract that must be in place if the buyer is a "Consumer", but not if the buyer is a "Merchant"? Yes or No

If you answer yes to both of those questions, then the question about whether the definitions are clear or how they apply in a specific circumstance is an argument for a specific case. Personally, while I agree the definitions *could* be clearer, I don't think there is all that much in the way of grey area open for argument, and frankly, I think you're trying rather desperately to emphasize the minor theoretical ambiguities so you can simply ignore the fact that, in reference to a game, there really is absolutely no ambiguity about the fact that a game is bought "primarily for personal, family, or household purposes."

Guess what - the fact that you don't *like* the way the definitions are worded doesn't render them irrelevant. Moreover - go actually read the wording of UCC 2 where it distinguishes the two. Typically the main law is written with the merchant consumer interaction in mind, with the *exceptions* being stated as "Except as Between Merchants", so if those definitions were to be magically swept away so as to not annoy you, my argument against this interpretation of the law would actually be *stronger*.

Regardless, the definitions *are* there, UCC 2 defines definite differences in the creation of contracts based on where the two entities stand in reference to those definitions, and unless your argument is that they are annoying to you therefore meaningless, they make a difference.

You have posted several cases. I did not bypass them and move on - I explained, point by point, *why* I thought they were not relevant.
Generally it was because the defendent seemed to obviously fall under the definition of "Merchant" - which, perhaps not coincidentally, seems to be about the time you decided that you really hated the definition of "Merchant" and "Consumer".
If you post a case that has a consumer, and I can post a link back to the definition of consumer and undermine the argument again, then sure, yeah, I'm, going to argue it's a bad decision. If you can post a case that involves a consumer, and I *can't* undermine the argument simply by posting a link to the UCC text (again), then it's just possible that you've got the case that supports your point of view.

But so far, you keep posting cases that even you haven't seemed to actually read, because the defendants are typically merchants. Don't blame me for that.

Good Lord - Make long detailed posts, they complain that your posts take forever to read. Try to make them concise, and they quote you with no context at all like a girlfriend that remembers a slight from three years ago and brings it up when she's ticked that you left the toilet seat up.

I'm sorry, you're being - the polite word is disingenous. While I will happily argue for more limited enforcement even between "Merchants", I believe I've been consistent is stating that my primary concern is that a consumer should not be required to have a lawyers skills in order to play a fricking game. That is not at all the opinion you claim I've repeatedly expressed, nor the fact that I posted, in the actual Questionairre post, the annotation that the UCC did specifically allow for waivers.

Given how much it bothers you that there are protections for consumers against legal chicanery, I would be more than happy to donate some funds for the wormhole that helps you migrate to some Ayn Randian paradise where you can live your life in contentment knowing that if you buy a pack of lifesavers with an EULA on the inside wrapper annotating that you've donated your kidneys, you can expect to wake up in a bath-tub sans kidneys. But First, I have a few forms for you to sign off on because, well, frankly, I don't think you are nearly as smart as you think you are, and I want dibs on your stuff afterward.



Original Case? The first post was "In his summary ruling on Blizzard's case against World of Warcraft cheat-maker Michael Donnelly (released yesterday), District Court Judge David Campbell has stated that the act of using a bot in violation of a game's license or terms of use qualifies as a copyright violation. Huh?"

So, no, it's pretty much the Summary Judgement ignoring "Consumer" that I care about - the rest of the case is still in a state of flux.

Sure, I think MDY and Donnely is a bunch of pricks myself, but whether I'm right or wrong, the court has methods for enforcing it's orders, MDY has Lawyers for arguing it's side for injunctions, and Blizzard has lawyers with Word templates specifically for filing injunctions.

Unless there's something new that pertains to the original summary judgement, I'm not sure I care that much about the rest.



They have my sympathies on that - the last thing they want is GLIDER 2.0, with a GPL license - {G}. But althought I've heard a number of people throw around accusations of their having stolen "Warden" everything the case actually says in the summary judgement seems to be that they reverse engineered it, which, being protected under the DMCA, seems to have been one of their wins. If they stole it, that would fall under trade secret law, not DMCA *or* copyright, and you can get your company raped right royally violating that, so if it's not mentioned in the lawsuit, I'm inclined to assume it never happened.

Jonnan

I will grant that it's a difficult issue. But this solution simply pushes that problem back another level. What if the customer had bought Glider first, and Glider had the exact same clause saying that running WoW was a violation of MDY's EULA.

I don't see any way to say that MDY is liable for contributory infringement because using it violated the WoW client's EULA without rendering WoW liable to MDY for the same contributory infringement if the places were reversed.

I'm not *happy* about the fact that Glider was causing this kind of problem to Blizzard - but it's a big enough problem when the fight is a technological arms race between two companies - Imagine letting it fall over into a legal arms race with your right to run the software you want on your computer on the line.

Shall we adjudge, individually, whether Microsoft can make GPL software illegal on their PC? Can they force you to not dual boot with Ubuntu? Can you afford to go to court to prove they can't? Is it going to make a difference that my copy of XP is on my first partition, Ubuntu is on my second? But gee, my Ubuntu partition is the default I boot to . . .

Legal battles of titans are best kept between large companies, directly facing each other in court, not dragging what *I* can do with my computer into it. This consumer protection, enforced properly, establishes a legal "no man's land" where, if it's not important enough for EA to risk losing a sale by making their customers sign a piece of paper with proper explanation of what they're giving up, it must not have been that important then.

I agree with what you said below - I have no qualms signing that piece of paper myself if I know for sure what rights I'm giving up *before* I walk out of the store - I have before, for other things, but if what I signed is going to be used on a legal battlefield between two other companies, I think I'm entitled do know that *before* I get my hand blown off picking up a mine disguised as a toy.


That seems to me to be a fallacy, rather like saying seatbelt laws are useless because people will just drive more recklessly. Yet, statistics prove that seatbelt laws are effective in reducing injuries and fatalities, even taking into account that *some people* drive more recklessly.

I think it's the same here - sure, some people will still get themselves into trouble despite consumer protections, but that doesn't mean that having no consumer protection is the right answer.



Jonnan

So far, the judge seems to be more concerned about whether they're breaking the law than about their financial well being.

. . . which is, after all, his job. He's a judge, not a financial consultant.

. . . and it's been almost an entire month since that motion was filed, so it would appear the judge is simply ignoring it. I think the jude is simply going to follow the time schedule that he has proposed.

Maybe, but something just came up in my mind:

You dont need to buy the retail WoW to play it. You can download the entire Client for free from the WoW Homepage. And even buy a license there(completely seperated from the download).

No physical cd is required.

Now do you want to base this case on the users who

a) buyed the retail WoW and used the cd to install it
downloaded the client and buyed it over the hp
c) buyed the retail WoW but used the downloaded client since they used it to play the trial
d) got the cd or a copy of it from somewhere and buyed wow from the hp (unlikely but possible)

Or should it be simply ignored that a cd is included in the box?



If you cant buy a license via a contract the sale of wow may not even fall under contract law at all.

If I could find even a single major case where one party was a consumer (or that you would accept as as consumer), this might matter. The whole point is that the license contract itself contains the remedies available in the case that a consumer breaches the contract - and in the one major case (Zeitenberg) where the guy actually WAS a consumer at the time of purchase, you simply said he was a merchant, so none of my (or the court's) reasoning following it mattered. Zeitenberg is the closest I've found to an actual consumer case, and you ignored it out of hand.

You've also repeatedly cited that every other district except 7-9 have ruled EULAs uninforcable out of hand, but not produced caselaw to support this assertion. Please do so, to give me a chance to address them. I think I have found cases from the 3rd and 6th districts that you would use to support this, but both have absolutely NO application to merchant-consumer sales. Both involved a company trying to enforce an EULA over an actual negotiated contract with different terms, and yet they come up on database searches as "landmark" cases defeating EULAs. I fail to see how that type of precedent speaks to a consumer software product WITHOUT such a specifically-negotiated contract.

From Blizzard's statement of fact in the case:

"At one point, after Blizzard developed a new method of detecting Glider, Donnelly sought and received help from Joseph Thaler who sold information about Blizzard’s new detection measures to MDY for $18,000."

The actual details of what this "information" was is part of the sealed testamony. Whatever it was, I believe we can safely assume it was information not available to WoW users, and thus could not be legally used as part of any reverse engineering. This bit was left out of the ruling because it simply doesn't matter for the purposes of this case if Glider is an illegal derivative work or not.

If this ruling goes badly for Blizzard, I have no doubt you will soon have to sign at purchase, despite the negative effects this will have on both consumers and software makers. Worse, they might start selling boxes without CDs in them, just a serial number to download the game.

No, the financial impact on one or both parties is a necessary consideration in the injunction process. Under these circumstances, if the damage to MDY by the injunction is outrageously large compared to the corresponding damage to Blizzard caused by the lack of the injunction,  he should be finding in MDY's favor. At least until the matter is finally decided at trial and probably through the appeal process, MDY will be likely not be subject to an injunction.

Bodyless - those same considerations came up in the Zeitenberg case in 1996. That was part of the justification for upholding EULAs.

I just realized I failed to include a link to Zeitenberg in my earlier response, so here it is:

http://www.law.emory.edu/7circuit/june96/96-1139.html

"If I could find even a single major case where one party was a consumer (or that you would accept as as consumer), this might matter." - I would think that it would occur to you to consider the possibility that *this* might matter - that you have been trying for months now, but can't find a single 'major case' where the defendant didn't qualify as having special skills in that industry or was using it in business.

I have to be honest - if on my side I couldn't find a single quote in the UCC code that justified my opinion, I would begin to consider the possibility that my opinion might be wrong. It says worlds to me about this argument that your reaction to not being able to find any support for your opinion indicates that it must not matter.

I have seen them in various districts, but they aren't very recent - those decisions were *why* the software industry tried to get UCITA passed, they tended to get dismissed early on in the process and they go back to the 90's, so they're short decisions and old decisions. I will try and dig up some time this week and track them down.

God I wish you would provide links habitually, but I found it - looks to me like yeah, that *should* be a criminal act, and if this opinion was based on that, I would have more sympathy for it. But the Summary Judgement seems to me to indicate that Glider was assumed to have reverse-engineered it rather than done something to criminally acquire it, which means the summary judgement is still relying on the EULA being able to say you can't run a program that is legal.



And hey - as long as sales-people know as much about software EULA's as I had to know about satellite network contracts, then that doesn't bother me any. *MY* suspicion is the exact opposite - that if this get reversed because of the consumer protection clauses, you will see software divide into two separate classes, those that honestly need this protection (and WoW may be one of them) and setup an EULA process the same way we sell Cell Phone Contracts and such, and those that decide they're not willing to give up sales for that kind of protection, reduce the EULA to a set of common, enforcable waivers printed on the box for the consumer to clearly see, and just stay within the regular UCC law.

Jonnan

Honestly - hard to say, I could see courts going either way. I successfully fought a company that sold me an item over the web when they tried to say that I was bound by the disclaimer on their web page, even though I didn't have to actually accept it to buy the goods. But that was a physical good, and I could pull in the FTC on my side ("Interstate Transport" from Illinois to Indiana)

Given a simple acknowledgement of the EULA before downloading the software? Well, I would consider it insufficient, but I'm sure some courts would support it. Given a proper version of going over the EULA by paragraphs like you have to do with a lease or a cell contract? Even I would consider that sufficient, and it's not like the web couldn't do it.



I was reading that wrong, the license is either a contract or a modification to a contract, i.e., it *refers* to a good, it's not a good in and of itself. To say you're 'selling' a license is to indulge in sloppy thinking, because the license itself is the terms of the sale, not the item sold. Unfortunately the terms have been used interchangeably often enough to encourage sloppy thinking and I wasn't thinking about it properly.

Jonnan

Regarding Procd, Inc. v. Zeidenberg - Yes, it explicitly supports Willy's belief that the distinction between "Merchant" and "Consumer" is illusory, and uses that to make shrink-wrap agreements binding in the 7th district.

It's several pages long, and I'm not going to rebut it point by point, but you should read the case, and then read the law, and come to your own decision about whether I mischaracterize the case.

The first most interesting point is that it creates an interesting new right on the part of a company, and justifies the rest of the case in relationship to this new right. The new right is the right to control 'Arbitrage' - the ability to keep people that are getting a better deal on a product from making a profit by selling to those that can't get that kind of a deal, and pocketing some of the difference.

This is interesting for one simple reason. There is no law creating a right to control arbitrage. The court cites numerous *examples* of controlling arbitrage, and then generalizes from the concept that it can be done to the fact that a company has some inherent right to do it, and since you have to have a shrink-wrap agreement to enforce that right to do it, a shrink-wrap agreement *must* be enforcable.

Then the judge proceeds to discard the question of whether you're dealing with a Merchant or a Consumer:
"Anyone can walk into a retail store and buy a box. Customers do not wear tags saying "commercial user" or "consumer user." Anyway, even a commercial-user-detector at the door would not work, because a consumer could buy the software and resell to a commercial user. That arbitrage would break down the price discrimination and drive up the minimum price at which ProCD would sell to anyone". Now, if the law didn't have specific provision distinguishing "Consumer" and "Merchant", the judge would have some point, however the judges opinion deals with the specific definitions of consumer anf merchant by . . . ignoring the fact that they exist, and then treating everyone as a merchant.

You have to put that in that order, because if the judge ignored the distinction and then ignored the parts that define the two, the UCC by default treats everyone as a consumer and treats the exceptions with some variation of "Except as between Merchants", so then ANY EULA would be subject to the maximum protection of the relevant parties. By ignoring the definitions, then treating everyone as merchants, he reverses that and grabs everyone and puts them into the *least* protected class.

Which is exceedingly odd since the definition of merchant makes it fairly clear that that the buyer would qualify as a merchant - the buyer was capable of pulling this information out of a specialized database and reselling it. That's not a common skill, and as a merchant Zeidenberg would have been held to the EULA, as he should have been. He was copying and reselling the information - that's not "personal, family, or household purposes."

So, this decision *could* have simply noted that he qualified as a merchant and been done with it. Instead the court went to all sorts of effort to pretend there was no distinction.

The rest of the decision is to justify the formation of the contract.
"Zeidenberg does argue, and the district court held, that placing the package of software on the shelf is an "offer," which the customer "accepts" by paying the asking price and leaving the store with the goods. Peeters v. State, 154 Wis. 111, 142 N.W. 181 (1913). In Wisconsin, as elsewhere, a contract includes only the terms on which the parties have agreed. One cannot agree to hidden terms, the judge concluded. So far, so good-- but one of the terms to which Zeidenberg agreed by purchasing the software is that the transaction was subject to a license. Zeidenberg's position therefore must be that the printed terms on the outside of a box are the parties' contract--except for printed terms that refer to or incorporate other terms. But why would Wisconsin fetter the parties' choice in this way?"

The first question the court never answers is whether this is a separate contract or a UCC 2 modification of a contract, so strictly speaking, I think this fails because of equivocation - we don't know, for certain, whether when the court refers to this contract they are referring to a General Contract or a UCC 2 modification of a contract. From context, it would appear to be the latter, but it's not explicitly stated. However the entire "Consumer" versus "Commercial" dialogue gives us context, the court appears to be dealing in UCC 2 law, and many of the citations come from UCC 2 law. Fair Enough.

Well, the short answer for "why would Wisconsin fetter the parties' choice in this way?" is that Wisconson accepted the UCC 2 as written, which means that consumers are specifically exempted from these kind of terms without being made formally aware of them - even the contract on the outside of the box is something that requires formal acceptance for a consumer to be bound by - so it's reference to further, hidden terms never comes into play if the buyer is a consumer.

"Transactions in which the exchange of money precedes the communication of detailed terms are common. Consider the purchase of insurance. The buyer goes to an agent, who explains the essentials (amount of coverage, number of years) and remits the premium to the home office, which sends back a policy. On the district judge's understanding, the terms of the policy are irrelevant because the insured paid before receiving them. Yet the device of payment, often with a "binder" (so that the insurance takes effect immediately even though the home office reserves the right to withdraw coverage later), in advance of the policy, serves buyers' interests by accelerating effectiveness and reducing transactions costs. Or consider the purchase of an airline ticket. The traveler calls the carrier or an agent, is quoted a price, reserves a seat, pays, and gets a ticket, in that order. The ticket contains elaborate terms, which the traveler can reject by canceling the reservation. To use the ticket is to accept the terms, even terms that in retrospect are disadvantageous."

Which goes into
"Consumer goods work the same way. Someone who wants to buy a radio set visits a store, pays, and walks out with a box. Inside the box is a leaflet containing some terms, the most important of which usually is the warranty, read for the first time in the comfort of home."

The exact kind of apples and oranges comparison I've gotten on Willy about, comparing highly regulated industries with specific terms drawn out requiring you to initial various paragraphs to buying a radio at the store. I'm not sure what the district judges policy says, but I went through an entire HR session at with my employer when I was hired going over the terms of my health insurance plan. My House insurance went through the same thing - I spoke to a specialist and asked about anything I didn't understand (When I bought the house). My *Radio* on the other hand had a short pamphlet with a set of explanations of what was covered, and a set of 'Waivers' saying no further express or implied was valid unless determined by local law. I had the exact same set of rights if there was *no* pamphlet in the box, because they are set by the local consumer protection laws - the pamphlet is informational only.

So, no, it's incredibly sloppy thinking to posit that these are equivalent. They're simply not, on the face of them, even vaguely equivalent. They *are* UCC law, but where they impinge on UCC 2 then you're dealing with a merchant to consumer sale, with all the paperwork that implies, or a set of waivers - and quite often he's caparing that to things that don't even fall under UCC 2 - There are Nine UCC Articles, dealing with everything from buying popcorn (UCC 2) to investment instruments (UCC 8) - the laws aren't the same, the relationships between you and your broker are not the same as the relationship between you and the cashier at Wal-mart.

"ProCD proposed a contract that a buyer would accept by using the software after having an opportunity to read the license at leisure. This Zeidenberg did. He had no choice, because the software splashed the license on the screen and would not let him proceed without indicating acceptance. So although the district judge was right to say that a contract can be, and often is, formed simply by paying the price and walking out of the store, the UCC permits contracts to be formed in other ways."

And here is where the problem of Equivocation comes into play - because the assumption *here* is that the EULA is a separate contract. A minute ago it looked like a modification of the sales contract, but now it's a separate contract - in which case the question of questions 2B) and 3) come into play - what consideration did the buyer receive? Not the right to install - he already had that. By keeping him from exercisicing his legal right to use the program without accepting the contract, Pro CD Inc was in fact extorting his cooperation, and since he received no additional consideration in exchange for the rights he lost by signing it actually fails as a contract.

So, fundamentally, when it's convenient to the court to consider this a modification of the sale contract, the court used that. Then, when convenient to consider this EULA a separate contract, they used that. So what we get is a nifty new kind of contract that applies to anyone at time of sale, yet doesn't require consideration. Great deal if you can get it - and in District seven (Where I live, god help us all) you can.

But I still think it's a bad decision that went to a lot of extra effort to create precedents to be abused, and I think I can honestly say I've explained why.

Jonnan

Or it could be that the license contracts themselves contain the common remedies for consumers breaking the license in consumer-level ways (e.g., the tens of thousands of accounts/game licenses Blizzard has terminated due to Glider). Nah, couldn't be that. That would just be silly.

In reality, consumers don't usually sue for a $50 game. Of course, companies don't generally sue someone over a $50 game, either. The only cases that go to court are the ones the standard remedies are insufficient to cover, and guess what? Those all involve someone trying to make money off of someone else's property.

This is entirely possible, but this would also mark the end of being able to walk into any Wal~Mart and buy a game. Needing to keep an certified expert on hand at all times (much like a pharmacy) would make selling games cost-prohibitive for most outlets. There's an inherent anti-competitive argument here. This would be a possibility, but I don't think it likely.

That type of thing I actually HAVE seen court decisions on, and you are correct. Simply having a link to an EULA or disclaimer is insufficient (in one case, it was hidden in gray text in a gray field, literally hidden from view). The consumer must be forced to click an "I Agree" button to get past a license or disclaimer for it to be enforcable. Note the cases I read were web-based, but the same principle should apply. I'm not sure which would be more likely to be read, paragraph by paragraph or a single document, but I suspect the percentage of people who would read either is appallingly low.

The whole system is gramatically sloppy. Technically, there is nothing "sold" at all - no Good ever changes ownership. Technically, what you are paying for is the up-front fee they charge you for making the license agreement, and the whole affair is further complicated by one or more middlemen. "Selling" the license makes for faster typing, that's all.

I won't address your discussion of Zeitenberg in it's entirety, but will hit the funny points. Zeitenberg obviously considered himself a "consumer" when he purchased the consumer version of the software, rather than the full commercial version. At the time, his computer skills might have been higher than the general public, but he was by no means an expert the way I read the definition of merchant to mean. He was a college student majoring in computer science.

While *I* would probably not be able to repeat his incredible feat of programming (LOL), my little brother certainly could, as could my father (although to be fair, he IS an IT guy). The skills necessary are certainly not rare today, and weren't all that rare in 1996. Probably half the users of this site would qualify as "merchants" if we were to use this level of skill as the determining factor.

I think you are deliberately misreading this. The ruling says a (sales) contract can be formed in a way different from the most elementary form of cash for a box. This simply says a contract does not necessarily require the two sides' considerations be exchanged at the same time.

And to add fuel to this fire, I submit this:

http://www.engadget.com/2008/07/16/apples-lawsuit-against-psystar-examined/

Perhaps you DO have to worry about the EULA on the operating system. Personally I think this opens Apple up to anti-trust action, but for sure Psystar's going to get taken to the cleaners for copyright infringement.