More on installing = making a copy
Just continuing to follow the story, and it felt interesting enough to merit its own post rather than just an addition to the comment thread.
Although it has not put the issue in quite such stark terms, Public Knowledge is essentially seeking a ruling that says that the sale of consumer software is, in most circumstances, a sale, pretty much regardless of what the agreement that comes with the software says. If the court agrees in spite of MAI and its progeny (and the ruling survives certain appeal) then U.S. copyright law would protect, among other things, making copies of purchased software in RAM in order to use the software — no matter what the “license agreement” says. Resolving this issue in favor of Public Knowledge would call into question provisions in EULAs governing nearly every virtual world and multiuser online game, as well as EULAs for other software.
9 Responses to “More on installing = making a copy”
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I’m glad things like this are finally coming to a head where both parties seem to have enough support/money to actually fight it out in court. Hopefully, Blizzard plays nice and doesn’t simply look at MAI, ask how many chips they have and force the guy all in. Too many cases never see the light of a courtroom because the scared party simply outspends the other side.
A ruling (that survives appeals) on this would be about as nice as a ruling on the placement of music on a publicly accessible share constituting a Copyright violation.
I meant MDY. Darn acronyms…
I wonder how this would affect an application like the Spore Creature Creator, which is now getting some love for more than just the crazy phallic creatures it spawned last week; attention has turned to the EULA.
In my opinion (such as it is), the software industry has long been trying to “have it both ways.” They want the strong legal protection (and ability to control user behavior via licensing) of contracts, but they want the ease of retail consumer sales. My problem with that is…
… they take my money and give me an item. That feels like a sale. When did I get a chance to negotiate? That makes it a contract of adhesion, at best. And have you seen the rules lately? Just TRY to return a video game if, after buying it, you decide you found something you don’t like in the license. Not only did they already take my money (via the game store as proxy), but I probably can’t even return the game for a full refund if I find the license unconscionable.
Tachevert: “the software industry has long been trying to “have it both ways.””
sometimes i wonder about that especially after having read stories such as this one: http://www.gamepolitics.com/2008/05/08/pc-gamers-angered-by-eas-new-copy-protection-system
To be fair, EA has decided to drop that system in favor of one that only checks the cd-key after install if you’re using the online features or update systems of those games.
So, yeah, that didn’t go over to well, and they dropped the constant re-activation nonsense.
@Tachevert:
I’d put those as shortcomings of the end seller and existing retail distribution system. Retail treats software like an item, even though it’s not always so item-like anymore.
My own opinion/outlook is, all I’m really paying for when I buy a boxed MMO is that nifty 16- or 20-digit access code hidden in the box on a slip of paper. The discs make installing more convenient, and the instructions make starting the game more convenient, but in most modern cases I could just as easily download the client (and will be downloading at least as many raw kb of data as is on the discs in updates and patches). I dislike not being able to get the instructions as a PDF, but that’s what fansites are for.
Having said that, I’m very very glad that it’s Blizzard in the precendent-setting hotseat and not EA. EA has definitely been trying to have it both ways, and with games that aren’t dynamic offerings and would be well described as an item.
I dunno, my bias is I’ve worked retail, so if I’m gonna blame someone I’m gonna default to them. 😛
@Peter, eh even in the case of Blizzard, they don’t need to be doing this. They have recourse via the subscription model, and nothing prevents them from banning botters. This is effectively stating that if the software is installed onto your machine, you cannot load it into memory without their authorization. That’s… kinda messed up. Crying foul over someone running their software in a way they don’t like and claiming copyright violation when no lasting duplication is created, only what’s needed to actually RUN the bloody thing and only for the personal individual, is bad if they actually win this. It’d further strip away fair use rights.
If I give you a painting for free, you still have ownership of the item. If you decide to cut it into pieces, you aren’t legally liable for doing so. It’s only if you make a bunch of copies and try to sell that that copyright law is supposed to kick in. My IP rights don’t carry over to the individual copies being used for personal use, only to transferals or public displays. There’s no reason why software code should be treated differently. Nothing about Glider goes beyond individual use, and it should be protected because of it, at least in terms of copyright violations.
If this is going to be argued it needs to be argued in terms of service violation and not copy right law, or in terms of it harming Blizzard’s ability to do business. If it were being done in that way, at least the reprecussions wouldn’t be further gutting of customer rights since the application would be much more limited. This will be very sweeping if it succeeds, and a huge boon to customer rights if it fails. Licensing Agreements would suffer a huge blow, and this is not a bad thing. As it is, they have you signing over inherent rights and that really shouldn’t hold.
@Eolirin: the sad thing is that they don’t seem go after the user, but the creator of a tool which encourage the user to violate the license. It’s more like trying to establish a ban on selling pro golf-clubs targetted at competition X if those clubs violate the rules for that competition. I guess that at best would be fraud, in relation to the user, not in relation to the company… So in theory the customers might be able to sue over the Glider since they are selling a “useless” product that you cannot use without breaking a contract… *shrugs*