First - Yes those five point I quoted were a summary - that's why I linked to the original post.

That said - You're still making a value judgment Bodyless - you think you know 'what I want', and you're seeing it through that prism. Of course there are rights on both sides here - but those rights are laid out by the government, and can't be limited by contractr without meeting specific standards, which I hold the EULA doesn't meet, and I layed out five point, one after another showing why, logically, they don't meet them.

Instead of evaluating those five points on the merits, you keep coming back to value judgements about what I want. Well Bodyless, what I want is irrelevant if the logic isn't valid. But you don't seem to want to actually point out any weaknesses in the actual logic of my position - you keep defaulting to what you think is 'fair'.

Lets put it this way - if my logic is solid, and it's actually not 'fair', then you need to lobby for the law to be changed. But you're never going to know if the law is fair and I'm just wrong or if I'm right and the law is unfair until you refute or acknowledge the logic of my argument.

I post, again, the summary of my argument, with the link connecting to the original post with the needed references and legal support for my position.

Please, as a courtesy to me, actually tell me which premise or logic you disagree with - believing you know "What I want" is irrelevant, please read "What I actually posted" please?

He disagrees with your premise that the law as written has any relevance.

Uhm, jonnan. Sometimes i wonder if we speak the same language.

With "Well that sentences were more of an summary." i actually meant my sentences which you quoted before.

This was certainly not a value judgement.

Stop beating the dead horse. I didnt even disagreed with that if you would read more careful. But the exact time when you sign the eula does not say anything about the eula itself. Only if its legal valid as a whole contract. But that does not mean that particular parts of it are illegal themself.

In a way its the purpose of law to make things fair.

The weakness of your logic is that you think that the invalidness of an eula affects the legality of the parts of it. EULAs can be made valid even if they are invalid now. So this cannot be a criteria on how legal banning bots is, but if the ban is in effect. Which it is as long as no judge follows your logic.

Exactly, what i actually posted was why i think that banning bots is not itself illegal. Instead you keep coming back with UCC law i didnt even argued.

My point list:
A ) Banning all bots from your software is not illegal because there is you law stopping you from doing so.

B ) Declaring EULAs invalid because of UCC law will not make EULAs disappear. So this would have no real use.

C ) Because of A) and EULAs still not being declared invalid by a Judge, using Glider with WoW is illegal. But Glider cannot be used without WoW which makes Glider illegal. Even if there is no law making Glider illegal. And both MDY and WoW players know about that.

Take a candy bar into a theater that doesn't allow outside food and drink and wave it around, then take a gun into a bank and wave it around.  After that, you should be able to grasp the fundamental difference between violating house rules, and violating law.

In this case, MDY got hauled off to court. Post Hoc Ergo Propter Hoc?

If the customer agrees with the licensing agreement. I think Wal-Mart would prefer you leave their store before slipping the CD-ROM into your computer, though .

Or 2c) set terms and conditions for copyright purposes. Or 2d) state the rules for accessing their servers, which are their own private property. Or 2e) Something else entirely. False Dilemma?

EDIT: I've found Castronova's paper on the effects of botting in WoW! This is a major exhibit for the case, and plays a key role in determining how much damage that Glider and other bots may have on Blizzard.

Edit again: There is a lengthly analysis of how gorld farming affects MMORPG economies also available.

Interestingly enough . . .

I'm reading some of the legalese, and one thing popped into my mind: Blizzard is not necesarilly discussing what you buy at the store. In filing 88 (especially page 8), there is much acknowlegement that the vast majority of the content is stored on Blizzard's servers and copied to the user's computer during gameplay. I don't think the court case is going to be limited to merely the client software bought at a local Wal-Mart.

[quote who="Bodyless" reply="14" id="1896966"]

Yes, actually, to my mind it is. You're making a judgement about where the limits of everyone rights bumping up against each other here ought to be. Which is fair, I've also been fairly open about the fact that I think the consumers rights ought to be the priority - I'm a liberal, I will *always* be biased towards the smaller guy in a conflict of rights.

But my five point argument was in fact an attempt to get away from that philosophical argument and into something objectively provable or debunkable, and I feel like you keep going into where you think the rights ought to be balanced, and have yet to respond to the five points.

Either one of those premises is wrong, or the logic flowing from one of those premises is wrong or both, or neither.

But you keep going into this philosophical territory of trying to say what I am trying to do regarding everyones rights. Well, their respective rights are laid out fairly clearly in law - nobody should care what I feel everyone respective rights are, we need to concentrate on what their rights actually *are*.

Which of those five premises is actually wrong Bodyless?

So, again, I feel you need to read, thoroughly, and debunk one or more of the five points.

With apologies: "The weakness of your logic is that you think that the invalidness of an eula affects the legality of the parts of it."?!?! That sentence doesn't even make sense bodyless?!?!?

Of COURSE the invalidity of the EULA affects the legality of the individual provisions. You *can* have the reverse, where a legal contract contains an illegal provision, and only that provision is stricken from the contract. But a *legal* provision, within an *illegal* contract is meaningless. That's literally saying that my having never presented you with a contract binding you to pay for it doesn't mean you're not bound by the provision that says you will pay me $1000 in licensing fees everytime you quote one of my posts.
There's nothing illegal about that provision, but that entire contract being illegal renders the provisions in the contract moot.

A. You're quite correct. There is nothing inherently illegal about banning bots from a server.

B. Here is where your premise is incorrect. I have no *desire* to declare EULA's invalid. I *do* desire for the inherent illegality of enforcing an EULA that has provisions in it that are only enforcable via contract law (as opposed to a true license, which is defined with *much* more restraint under copyright law) on a consumer, who has been protected under the UCC from exactly that, to be enforced properly.

A Properly and correctly circumspect EULA which either 1: enforced between merchants, or 2: is enforced on consumers, consisting only of those terms legally enforcable under copyright law or those limited disclaimer as recognized under UCC code, is FINE!

C. As has been mentioned, in some districts, EULA's *have* been declared invalid by judges. So this premise kinda fails too.

Have I mentioned that I have my own set of five premises that I would like to see you debunk? Perhaps you could go over them and see if in some way they are untrue? Or if perhaps I have a logical error in them?

You could read through them and debunk them point by point, with references.

Jonnan

Maybe in your mind. But i actually argued that there is no logic reason why the border should be always shifted the way in favor of the consumer. So while thinking logical there is no reason to not limit the rights of the parties in a fair way.

Also being biased towards the smaller guy means that you are being social. Liberal means that you limit the rights of the goverment and giving rights to the people by law. Cooperations are just richer people.

And being biased at all means that your judgement cannot be trusted in this issue because you will leave out premises and conclusions that do not favor the party you are biased towards. While the premises and conlcusion you make may not be wrong they are very likely to be incomplete. Thats why we have two (teams of) lawyers and one judge in a case.

Look, i am not that much into us law. Thats why i dont argue your 5 points. Your premises and logic might be right but that does not solve some underlying problems:

1. See below the first qoute of this post.

2. Law can contradict itself. So there might be still right premises and a logic that has the opposite conclusion.

3. You cannot declare EULAs as invalid in general. If there is one consumer who signed the eula before buying the game, its valid in his case. For example if you buyed WoW online from its hp.

Not to mention that you could in theory shift the point where the user signs the eula. Maybe to when he buys the game? This would make your premises false but yield no benefit to the game maker nor to the consumer.

It is relevant as long as you cannot garantue to 100.000% that the contract is invalid and will ever be. And in this case you cannot do this. See above.

See above.

Which is equivalent to the whole software in case of WoW.

Sorry but that didnt look this way.

But the rest of the world does not have to bow to that few districts. So in general my premise is true.

Your points are not the beginning and the end of the world. So i wont narrow down my arguments to that.

Did i mention "See above"?.

BTW if i am ever being philosophical i wont care very much for laws of a country i dont even live in.

You don't take it as a logical reason that, um, the law establishes that special protection for the consumer? Since it, actually explictly spells out special protections for consumers, I'm going to accept that as a logical reason for granting special protections for consumers.

My bias towards consumers is broadcast honestly, and if there were no law protecting consumers, I would certainly advocate for one.

But the neat thing about logic is that in order to create a logical argument or attack one, you are forced to set aside your personal biases and look at the actual logic objectively, what is, not what one might wish for - the premises, the implications of those premises, whether there is a hidden assumption that need to be dragged out into the open to be supported or slain, all the things that clarify thought are forced when one has to actually look at the logic. 2+2 = 4, no matter how much you may like the numbers three and five.

So, if I have given you an explicit set of premises, and an argument, both to be debunked should you wish to do so, the question of my biases is irrelevant - either those premises are valid, or they're not.

Instead of debunking my argument or supporting your own, you consistently keep trying to make this about my 'biases', as if I had never made a logical argument for you to debunk.

Frankly that hits me as dishonest and lazy. Make an argument, or don't, but don't hide behind "he has a bias, so I don't have to pay attention to his argument"

#2. Contradict itself I don't grant, but the law in one statute may be more applicable to a case than law that was written in some other statute loosely touching on the case. But a general argument that "Well, there *might* be another applicable law!" isn't an argument - there might be an invisible omnipotent deity that created the universe 6,000 years ago with all the evidence that it existed longer built in. Or 5 minutes ago, with the exact same results. It's an "Well, anything could happen" argument. I don't do faith based arguments.

#3. First of all, I have not attempted to declare EULA's invalid in general - You've stated this repeatedly (and again below that "it didn't look this way". Check your glasses.), but it's a red herring. I have stated consistently that this is a result of specific consumer protections writ into the law, which apply to specific provisions, and I have given direct links to each and why I believe they are applicable. That's hardly an "In General" Statement.

Second - "yield no benefit to the game maker nor to the consumer.". On what basis exactly do you believe that having a consumer be aware of the contract they are being held to is not a benefit?

If you don't want to deal with a rational argument - saying "I Disagree, but I don't feel like debating it" is a valid option. But having posted repeatedly and committed to actively hashing it out, I think it's only ethical to debate it rationally and without sophistry. This "See above" stuff is kinda, y'know, wussy - {G}.

Jonnan

Depends on the argument. If at least one possibility must be true and you can disprove all of the other possibilities, then the process of elimination is a perfectly acceptable form of logic.

If the set of possibilities is infinite or very large, some sort of arithmetic or strong induction is usually preferred, since working with infinite sets can be rather inconvenient. This is what most people discussing the distant past use. We create a "base case," then create a set of rules that can be used to move along the timeline. The big question these days is whether the rule(s) have always been followed, or whether some external force has come in and changed things around a bit. In addition, there could be some discussion about what exactly the rules are.

Either way, it's faith. We can't prove one way or the other, so you have faith that your assumption that nothing has ever changed is correct. In addition, you have faith that the scientists have a good idea of what the rules are.

Unfortunately, the universe has thrown around a few monkey wrenches. Quantum Physics isn't looking very deterministic, and what ultimately may have caused the big bang is still an open question. We still can't unify all of our forces, and the halting problem has shown there are inhetent limits on our ability to predict many things.

Truth be known, we all have some basic assumptions, and even though our knowledge improves over time, we may never have a complete picture of the state of our universe. We all have faith in something at some point. We all start somewhere.

First of all, no, it is not faith - it is an axiom, a premise, or an assumption.

Which presents a fundmental difference, because although neither faith nor an axiom can be proved, faith describes something that cannot be disproved, whereas an axiom, premise, or assumption is disproved if accepting it leads to a logical contradiction or contradict known facts.

I know that sounds nitpicky - but it is an important distinction, and ignoring it clouds thinking, often quite badly.

In any case - This isn't a 'base case' scenario, where there is some question about the exact meaning of the laws laid down in the Codex Hammurabi to be deduced by cues in legal history, nor is there some ethereal set of quantum laws where you can measure the clarity of the law or the applicability of the law, but the heisenberg uncertainty principle forbids the law from being simultaneously clear and applicable - though such a principle would go a great way towards explaining the tendency of people to try and read my mind, biases, and politcal preferences rather than actually reading my references, premises, and argument.

There are clearly written out laws, in english, accessible through a miracle of modern computer science whose only relationship to quantum physics is that it was developed by CERN. As legal definitions do not always match common use, it is possible that these laws do not mean what it seems obvious to me that they mean - but the definitions for the statutes in question are themselves included in the law, so unless there is an esoteric meaning to a common word buried several layers back that completely changes the definitions used to something completely differing from their standard meaning, it seems to me to be an event both unlikely, and should such a thing be discover, quite definite - rather like being hitting my argument with the minor planet Ceres  - ignoring it would not be an option - {G}.

So, unless someone provides an actual, y'know, law that debunks my argument, I feel comfortable in treating the statement that I can't prove there is no law theat renders my case moot rather like the statements that I can't prove there  is no teapot orbiting the earth in an elliptical orbit, I can't prove there are no Invisible Pink Unicorns, and I cannot prove that the universe was not created by the Flying Spaghetti Monster.

As an act of faith, I have no objections to any of them - but rational debate requires rational thought, and rational thought only allows for debunkable axioms, premises, and assumptions, not non-debunkable assertions taken on faith.

Jonnan

Jonnan - points 4 and 5 are, if not completely debunked, under severe scrutiny. Yes, there are courts ruling software is sold, but there are others ruling that licensing is legally enforcable.

Yet again, I am forced to use a commercial case rather than a consumer, due to the lack of consumer cases. Still, I believe this is relevant.

From I.LAN SYSTEMS, INC. v NETSCOUT SERVICE LEVEL CORP.:

The purchase of software might seem like an ordinary contract for the sale of goods, but in fact the purchaser merely obtains a license to use the software; never is there a “passing of title from the seller to the buyer for a price,” id. § 2-106(1). So is the purchase of software a transaction in goods? Despite Article 2’s requirement of a sale, courts in Massachusetts have assumed, without deciding, that Article 2 governs software licenses.

Again:

To the extent it matters -- and given the facts of this case, it likely does not -- the Court will examine the clickwrap license agreement through the lens of the UCC. Admittedly, the UCC technically does not govern software licenses, and very likely does not govern the 1998 VAR agreement, but with respect to the 1999 transaction, the UCC best fulfills the parties’ reasonable expectations.

In Massachusetts and across most of the nation, software licenses exist in a legislative void. Legal scholars, among them the Uniform Commissioners on State Laws, have tried to fill that void, but their efforts have not kept pace with the world of business. Lawmakers began to draft a new Article 2B (licenses) for the UCC, which would have been the logical complement to Article 2 (sales) and Article 2A (leases), but after a few years of drafting, those lawmakers decided instead to draft an independent body of law for software licenses, which is now known as the Uniform Computer Information Transactions Act (“UCITA”).2 So far only Maryland and Virginia have adopted UCITA; Massachusetts has not. Accordingly, the Court will not spend its time considering UCITA. At the same time, the Court will not overlook Article 2 simply because its provisions are imperfect in today’s world. Software licenses are entered into every day, and business persons reasonably expect that some law will govern them. For the time being, Article 2’s familiar provisions -- which are the inspiration for UCITA -- better fulfill those expectations than would the common law. Article 2 technically does not, and certainly will not in the future, govern software licenses, but for the time being, the Court will assume it does.

This next part is the court basically addressing your 5 premises.

The clickwrap license agreement may be analyzed as either (i) forming a contract under UCC section 2-204

4 or (ii) adding terms to an existing contract under UCC section 2-207,5 a method of contracting that often results in a “battle of the forms,” e.g., Commerce & Indus. Ins. Co. v. Bayer Corp., 433 Mass. 388, 391–96 (2001). The distinction is important.

If the proper analysis is pursuant to UCC section 2-204, the analysis is simple: i.LAN manifested assent to the clickwrap license agreement when it clicked on the box stating “I agree,” so the agreement is enforceable. See Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585, 591–96 (S.D.N.Y. 2001).

If the proper analysis is pursuant to UCC section 2-207, the analysis is more complicated. See generally 1 James J. White & Robert S. Summers, Uniform Commercial Code § 1.3 (4th ed. 1995 & Supp. 2001). UCC section 2-207 creates two forks in the road for the facts of this case. The first fork is whether or not the clickwrap license agreement is a counteroffer -- an acceptance to i.LAN’s purchase order “expressly made conditional on assent to the additional or different terms,” UCC § 2-207(1), here the additional terms limiting NextPoint’s potential liability. The second fork is whether i.LAN accepted the additional terms either explicitly, implicitly, or by default. Clicking on “I agree” could be seen as explicit acceptance.

So to properly restate this, you don't want to declare EULAs invalid, you simply wish to limit them to enforcing exactly what copyright law says would apply in the absense of an EULA. In what POSSIBLE way does this differ from declaring EULAs invalid?

On a barely relevant, sadder note, both parties in the Glider case blinked. Most of the outstanding counts of the case were settled before trial, denying us an actual ruling on an issue that is highly relevant in today's uncertain legal environment. Although I did find it humorous that MDY settled on damages nearly double the revenue they made from Glider during it's entire lifetime. On the bright side, one of the remaining issues to be settled is whether Donnelly can be held personally accountable for said damages, rather than limiting liability to the MDY corporation (which consists of Donnelly himself, and not much else).

Filing 95

Edit: seems the font got changed in my previous post due to all the copy pasta. Oh well.

OH GOD THE AGONY!

Ok, done ragging on the font goof.  So commercial and consumer laws are set up entirely different, but you keep using commercial rulings to justify consumer scenarios because you feel they're applicable despite the vast differences?

I like the color blue, therefor EULA's are invalid.

Seems the judge in that case agreed that they aren't all that different, seeing as he fucking said so explicitly. There *are* differences, just not the enormous, black&white differences you seem to think there are.

And as I've said before, there are pretty much NO consumer rulings - even the rulings that start with a consumer involve said consumer using the software for commercial purposes. The consumer rulings that do exist deal with website TOS agreements, which are very much distinct.

This MDY decision would have been great to get a ruling on, too bad about that. In fact, the summary judgement DOES say EULAs are enforcable, but district decisions don't create binding precident. The settlement pretty much insures neither party will appeal to where a useful ruling could result.