Kaliyama, I missed that case, good find. It'll be interesting to see if it holds up in appeals, because most prior cases rule the other way, in favor of the software publishers. However, the way the judge ruled does not invalidate EULAs altogether. Instead the judgment is that the particular case that Autodesk brought forward, that Vernor was trying to infringe their copyright, was not valid. The judge specifically says he will not make a decision regarding the lawfulness of the license, as that isn't part of the case they brought.
So, what this case says is that if you buy the software and aren't using it yourself, you DO have the right to sell it to someone else, which is in keeping with the "necessary to the use of the software" part of the First Sale Doctrine. So, it asserts that people can resell software, as you guys argued. It doesn't address, however, whether the people who ultimately get the software and use it will be bound by the EULA. Previous case history, like what I cited, says that yes, they will.
It's all irrelevant anyway because of the way the Blood Bowl stuff ended up being resolved. Specifically the fact that people who buy from G2Play aren't actually buying copies of the game, just a key which is essentially part of the security. However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
Darkewolfe on
What is this I don't even.
0
KlykaDO you have anySPARE BATTERIES?Registered Userregular
edited July 2009
So what you are saying is that one could now buy a key without having to worry?
However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
That's a long limb you've climbed out on. The conclusion that you've drawn is that the judge's ruling means that anyone has the right to sell the software but that the user doesn't ultimately have the right to use it? Meaning that the guy in this case is allowed to sell copies of AutoCAD valued at around $40K each that may be essentially useless to the people buying them.
It seemed pretty clear to me that the judge was ruling that First Sale clearly applied to any software sold and the company loses any rights to control it's distribution afterward. I believe he even addressed the termination of a previous license when purchasing an upgrade, essentially, saying that the publisher cannot do that.
The publisher may have the right to terminate a license based on other clauses of the EULA, but termination based solely on who you purchased it from would seem to me to be against the spirit of this ruling.
Unrelated to the above, it seems weird to me that the publisher's complaint was their assumption that the people who bought keys from g2play had to torrent the installation files while g2play says that the keys were "from a supplier who showed up to get them in unlegitimate way." Noone claims the keys weren't legit. The publisher seemingly objects to getting the installation files anywhere other than directly from them while g2play's statement implies that the keys may have been from a stolen shipment, or the like.
However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
That's a long limb you've climbed out on. The conclusion that you've drawn is that the judge's ruling means that anyone has the right to sell the software but that the user doesn't ultimately have the right to use it? Meaning that the guy in this case is allowed to sell copies of AutoCAD valued at around $40K each that may be essentially useless to the people buying them.
Wrong. The judge deliberately does not make ANY comment on the legality of EULAs. He doesn't say anything about it, because it isn't relative to the case before him. In this case, we go back to prior cases, which rule that you are still bound by that EULA.
It seemed pretty clear to me that the judge was ruling that First Sale clearly applied to any software sold and the company loses any rights to control it's distribution afterward. I believe he even addressed the termination of a previous license when purchasing an upgrade, essentially, saying that the publisher cannot do that.
The publisher may have the right to terminate a license based on other clauses of the EULA, but termination based solely on who you purchased it from would seem to me to be against the spirit of this ruling.
No. He only addresses the copyright infringement claims brought by the plaintiff.
Edit: The issue was brought up, but wasn't relevant because a decision earlier in the chain (that the license doesn't buy him when he's just reselling it) makes it not under consideration.
As to Mr. Vernor’s claim that the License itself is per se unlawful, he may lack
standing. If, as the court discussed in Part III.C, infra, the License does not bind Mr.
Vernor, then the court queries whether Mr. Vernor has standing to challenge Autodesk’s
use of the License. The Court therefore declines, at this time, to consider whether the
License itself is unconscionable, or whether Autodesk’s use of the License constitutes
copyright misuse. The court will consider those questions only after determining whether
the License binds Mr. Vernor.
However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
That's a long limb you've climbed out on. The conclusion that you've drawn is that the judge's ruling means that anyone has the right to sell the software but that the user doesn't ultimately have the right to use it? Meaning that the guy in this case is allowed to sell copies of AutoCAD valued at around $40K each that may be essentially useless to the people buying them.
Wrong. The judge deliberately does not make ANY comment on the legality of EULAs. He doesn't say anything about it, because it isn't relative to the case before him. In this case, we go back to prior cases, which rule that you are still bound by that EULA.
wut? Who was talking about the EULA here? I was asking about the conclusion you've drawn.
It seemed pretty clear to me that the judge was ruling that First Sale clearly applied to any software sold and the company loses any rights to control it's distribution afterward. I believe he even addressed the termination of a previous license when purchasing an upgrade, essentially, saying that the publisher cannot do that.
The publisher may have the right to terminate a license based on other clauses of the EULA, but termination based solely on who you purchased it from would seem to me to be against the spirit of this ruling.
No. He only addresses the copyright infringement claims brought by the plaintiff.
Edit: The issue was brought up, but wasn't relevant because a decision earlier in the chain (that the license doesn't buy him when he's just reselling it) makes it not under consideration.
I would politely suggest that you reread the ruling as the judge does specifically address the portion of the EULA regarding upgrades. He smacks it down(spoilered)
Similar to the salvage transactions in Wise, the License required CTA to destroy the software in the event that it purchased a software upgrade.5 License: Upgrades and Updates. Under Wise, however, this is a “sale with restrictions on use,” and is a sufficient basis to invoke the first sale doctrine.
Ah. Well, he strikes down the section of it that violates the First Sale doctrine, as it applies to CTA. He doesn't allow Vernor to challenge the EULA's other IP protection clauses, though.
However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
I'm so confused :rotate: :rotate: :rotate:
Houndx on
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kaliyamaLeft to find less-moderated foraRegistered Userregular
Ah. Well, he strikes down the section of it that violates the First Sale doctrine, as it applies to CTA. He doesn't allow Vernor to challenge the EULA's other IP protection clauses, though.
Yes. ProCD generally, means that the court decided EULAs weren't per se unconscionable or contracts of adhesion. What Vernor seems to stand for is that courts aren't going to allow EULAs to gut statutory first sale rights.
If a clause in the EULA prohibited you from actually exercising your first sale right by allowing them to ban post-first sale purchasers, it would be as invalid as prohibiting the first sale in anyway.
The court cannot be certain if Autodesk actually asserts that its License binds Mr.
Vernor or his customers. Autodesk certainly contends that the License negates a sale
between itself and CTA. That issue is not to be conflated, however, with whether Mr.
Vernor or his customers are bound by the License. Given the “nontransferable” terms of
the License, and Autodesk’s failure to cite authority for the proposition that the License
binds downstream transferees, the court will not consider the issue further in this order.
Case 2:07-cv-01189-RAJ Document 31 Filed 05/20/2008 Page 19 of 21
Interesting distinction you draw between buying the software, and buying the CD key. It might resolve down to a question of if they have the retail box somewhere when they sold us, and they just don't ship it to us, or if we only buy the CD key. But i'm not sure. Licenses also tell us we don't own the software - can't look at the source code, and can't do many other things with it. So i'm pretty sure the meaningful purchase is that of the license itself - the right to use the software, the core part of which is the cd key, not the CD.
This should highlight to everyone what online digital distribution services are really about - destroying the resale market.
Unrelated to the above, it seems weird to me that the publisher's complaint was their assumption that the people who bought keys from g2play had to torrent the installation files while g2play says that the keys were "from a supplier who showed up to get them in unlegitimate way." Noone claims the keys weren't legit. The publisher seemingly objects to getting the installation files anywhere other than directly from them while g2play's statement implies that the keys may have been from a stolen shipment, or the like.
It seems reasonable. g2play can legitimately say that they've made it clear that they're not selling the game, just the key, but the installation files are where the license agreement is. To put this another way: what if g2play strips out the key, sells it, and then turns around and sells the CD to a second customer? Who do you think has the right to play the game? One of these customers can install the game and click on "I Accept."
It's not to g2play's advantage to have this situation explored, and easier for them to wash their hands of the whole thing and say whoops, they don't have any keys to sell after all.
However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
I'm so confused :rotate: :rotate: :rotate:
Sorry, I was referring to the overall "terminate access to" based on other reasons, such as region shifts (as might have been relevant to the Blood Bowl discussion). I didn't make that very clear, my bad.
One could argue that this case legitimizes the very practice that G2Play is engaged in here - that is, the purchase of a low-cost copyrighted good in a foreign country specifically for resale in the US. Gray market and all that.
However, then you'd have to figure out whether the copyright applies to a short string of otherwise useless numbers or only to the software on the CD. Or both as a cohesive unit. There very well could be case law about that, but I'm too lazy to look and it probably hasn't reached the USSC yet.
I'm pretty sure that if G2Play, in addition to e-mailing you a serial or whatever the hell they do, sent you nothing but a CD in an envelope in the cheapest manner possible it would be able to completely bypass any problems in the future thanks to Quality King. But then they'd need a fancy lawyer to shut up the software publishers, and that costs money.
As it is, I lean toward thinking that by retaining the physical copy of the software and all accompanying documentation rather than including it in the sale, G2Play is in fact liable for copyright infringement. Basically the buy low, sell high aspect of their business is A-OK, but the specific manner that they go about doing it is undeniably sketchy.
Unrelated to the above, it seems weird to me that the publisher's complaint was their assumption that the people who bought keys from g2play had to torrent the installation files while g2play says that the keys were "from a supplier who showed up to get them in unlegitimate way." Noone claims the keys weren't legit. The publisher seemingly objects to getting the installation files anywhere other than directly from them while g2play's statement implies that the keys may have been from a stolen shipment, or the like.
It seems reasonable. g2play can legitimately say that they've made it clear that they're not selling the game, just the key, but the installation files are where the license agreement is. To put this another way: what if g2play strips out the key, sells it, and then turns around and sells the CD to a second customer? Who do you think has the right to play the game? One of these customers can install the game and click on "I Accept."
It's not to g2play's advantage to have this situation explored, and easier for them to wash their hands of the whole thing and say whoops, they don't have any keys to sell after all.
I really don't why the key should be viewed as any sort of "right of ownership." It's a security measure installed to combat piracy, but isn't the actual product, or any kind of physical representation of ownership of the product. I know we've had plenty of bad analogies, but...
It's like owning something with a combination lock on it. You can't get at what's inside without the combination, but if some guy knew the combo and you didn't, he wouldn't suddenly have ownership of the box. At the same time, if you forgot the combination, the company wouldn't be obligated to give you a new product.
Ok, that analogy is just terrible. The whole area is just nebulous and grey and impossible to build analogies for, because everything is undefined legally right now.
As it is, I lean toward thinking that by retaining the physical copy of the software and all accompanying documentation, G2Play is in fact liable for copyright infringement. Maybe they burn it. But does that matter? I don't know.
I don't agree even if the key was for a physical package, it's the same thing digital distribution is doing such as steam and impulse, all they do is provide you with a key.
It's one of those things but it may be a grey area though I don't think it's illegal at all and myself I have no problems with this but it may not be for everyone.
Well, not really. "Consented" digital distributors sell not just a cd key but the right to download the software (sometimes only a limited number of times) from their servers. They have a license to do this given to them by the publisher or whatever.
G2Play is purchasing physical copies and selling ONLY the serial keys, as far as I am aware. They don't sell any right to possess the software or any right to obtain it legally. Therein lies the problem - they retain the legally authorized copies. Yeah, you can copy software, but only for your own use, and only if you own it. Does purchasing a serial number mean you purchased software? Potentially no. And again, therein lies the problem.
Well, not really. "Consented" digital distributors sell not just a cd key but the right to download the software (sometimes only a limited number of times) from their servers. They have a license to do this given to them by the publisher or whatever.
G2Play is purchasing physical copies and selling ONLY the serial keys, as far as I am aware. They don't sell any right to possess the software or any right to obtain it legally. Therein lies the problem - they retain the legally authorized copies. Yeah, you can copy software if you own it, but only for your own use, and only if you own it. Does purchasing a serial number mean you purchased software? Potentially no. And again, therein lies the problem.
What he said. Steam is selling the whole thing, minus any physical stuff. They're still selling you "the game" because they were told by the publisher, "You can make a bajillion copies of this and sell them, according to this license." G2Play is not doing the same thing at all.
As it is, I lean toward thinking that by retaining the physical copy of the software and all accompanying documentation, G2Play is in fact liable for copyright infringement. Maybe they burn it. But does that matter? I don't know.
I don't agree even if the key was for a physical package, it's the same thing digital distribution is doing such as steam and impulse, all they do is provide you with a key.
It's one of those things but it may be a grey area though I don't think it's illegal at all and myself I have no problems with this but it may not be for everyone.
If the key was for a physical package, what's to stop them from selling the CD, box, manual, etc. separately? And if they do that, which customer is the owner of the license?
If the key was for a physical package, what's to stop them from selling the CD, box, manual, etc. separately? And if they do that, which customer is the owner of the license?
Right. One can't have his cake and eat it too - either the license is with the physical software, the key, or both together and not exclusively. If G2Play sent the CD to you in a plastic sleeve all would be well - but they don't. So really, while snatching up cheap copies and exporting them is fine, the whole 'cd key only' thing would never fly in court.
hjparcins on
0
Deebaseron my way to work in a suit and a tieAhhhh...come on fucking guyRegistered Userregular
edited July 2009
As far as Im concerned, if their products are being made domestically, then good on them. However, if their packaging, printing is done internationally to save some quid, then they can go fuck themselves.
As far as Im concerned, if their products are being made domestically, then good on them. However, if their packaging, printing is done internationally to save some quid, then they can go fuck themselves.
What's good for the goose and all that...
Please go back and find the part where someone in the industry explains why it's done that way. If it was done strictly your way, people in less economically dominant/less copyright regulated countries would simply not have access to the games. Put another way, people whose nations weren't structured in a way in which they wouldn't be poor would not get to play video games (without pirating them). Additionally, game companies would make less money and therefore fewer/less good games would be made. Your opinion is a poorly thought out one.
Just wanted to save people some speculation and post this update from Focus:
Hello everyone,
After reading your different reactions concerning the non-legal keys, I wanted to state some things :
- all our partners are selling game AND codes. If a website sells serials and only serials, be careful because Focus only provide game + serials.
- black listed keys were stolen. We know now that the stolen codes come from one of our publishers. Focus have never established any partnership with G2play or any other G2play-like websites. Furthermore, I read that these websites provided keys taken from retail versions of the game which is totally wrong: these codes come from the digital versions.
After many persons complained for being victim of swindle, it seems that G2play admitted that the keys were not legal… So they’re proposing either to reimburse the “victims†by Paypal or to give a different game or to provide new key.
I advise you NOT TO ACCEPT THESE NEW KEYS, you would take the risk of being blacklisted again!
We also know that a player who paid by Paypal has been reimbursed - by Paypal as well - while explaining the swindle.
I propose that we cease discussion in this thread, since it's pretty much resolved: Focus says that if you buy keys from G2Play or similar companies, they may ban you. I also propose that we leave this thread here, because it might matter to people who consider buying the game to know that Focus has threatened to ban things bought from certain people.
I'm about to log off, but if someone wants to start a thread in D&D for the discussion of the copyright and EULA implications, that would be fun.
Posts
So, what this case says is that if you buy the software and aren't using it yourself, you DO have the right to sell it to someone else, which is in keeping with the "necessary to the use of the software" part of the First Sale Doctrine. So, it asserts that people can resell software, as you guys argued. It doesn't address, however, whether the people who ultimately get the software and use it will be bound by the EULA. Previous case history, like what I cited, says that yes, they will.
It's all irrelevant anyway because of the way the Blood Bowl stuff ended up being resolved. Specifically the fact that people who buy from G2Play aren't actually buying copies of the game, just a key which is essentially part of the security. However, were people buying the actual game from a company in that situation, they would still be bound by the EULA, and the software owners would still have the right to terminate their access, based on the EULA.
Seems that way.
That's a long limb you've climbed out on. The conclusion that you've drawn is that the judge's ruling means that anyone has the right to sell the software but that the user doesn't ultimately have the right to use it? Meaning that the guy in this case is allowed to sell copies of AutoCAD valued at around $40K each that may be essentially useless to the people buying them.
It seemed pretty clear to me that the judge was ruling that First Sale clearly applied to any software sold and the company loses any rights to control it's distribution afterward. I believe he even addressed the termination of a previous license when purchasing an upgrade, essentially, saying that the publisher cannot do that.
The publisher may have the right to terminate a license based on other clauses of the EULA, but termination based solely on who you purchased it from would seem to me to be against the spirit of this ruling.
Unrelated to the above, it seems weird to me that the publisher's complaint was their assumption that the people who bought keys from g2play had to torrent the installation files while g2play says that the keys were "from a supplier who showed up to get them in unlegitimate way." Noone claims the keys weren't legit. The publisher seemingly objects to getting the installation files anywhere other than directly from them while g2play's statement implies that the keys may have been from a stolen shipment, or the like.
Wrong. The judge deliberately does not make ANY comment on the legality of EULAs. He doesn't say anything about it, because it isn't relative to the case before him. In this case, we go back to prior cases, which rule that you are still bound by that EULA.
No. He only addresses the copyright infringement claims brought by the plaintiff.
Edit: The issue was brought up, but wasn't relevant because a decision earlier in the chain (that the license doesn't buy him when he's just reselling it) makes it not under consideration.
wut? Who was talking about the EULA here? I was asking about the conclusion you've drawn.
I would politely suggest that you reread the ruling as the judge does specifically address the portion of the EULA regarding upgrades. He smacks it down(spoilered)
Yes, that's correct. I'm not arguing that.
I'm so confused :rotate: :rotate: :rotate:
Yes. ProCD generally, means that the court decided EULAs weren't per se unconscionable or contracts of adhesion. What Vernor seems to stand for is that courts aren't going to allow EULAs to gut statutory first sale rights.
If a clause in the EULA prohibited you from actually exercising your first sale right by allowing them to ban post-first sale purchasers, it would be as invalid as prohibiting the first sale in anyway.
Interesting distinction you draw between buying the software, and buying the CD key. It might resolve down to a question of if they have the retail box somewhere when they sold us, and they just don't ship it to us, or if we only buy the CD key. But i'm not sure. Licenses also tell us we don't own the software - can't look at the source code, and can't do many other things with it. So i'm pretty sure the meaningful purchase is that of the license itself - the right to use the software, the core part of which is the cd key, not the CD.
This should highlight to everyone what online digital distribution services are really about - destroying the resale market.
Anyway, since I happened to be downtown again today, I went and snapped a few pics before heading home:
You can't see the beginning of the list, yes, my photo aim sucks. Camera phone. But no 7 entertainment, regardless.
Security guard dude who was wondering why I was snapping a pic of the tenant listing also confirms there's no 7 Entertainment pte ltd, so.
It seems reasonable. g2play can legitimately say that they've made it clear that they're not selling the game, just the key, but the installation files are where the license agreement is. To put this another way: what if g2play strips out the key, sells it, and then turns around and sells the CD to a second customer? Who do you think has the right to play the game? One of these customers can install the game and click on "I Accept."
It's not to g2play's advantage to have this situation explored, and easier for them to wash their hands of the whole thing and say whoops, they don't have any keys to sell after all.
What they sell seems to work, judging from internets, but they're a shady operation
Sorry, I was referring to the overall "terminate access to" based on other reasons, such as region shifts (as might have been relevant to the Blood Bowl discussion). I didn't make that very clear, my bad.
Check out Quality King Distributors, Inc. v. L'anza Research International, Inc. USSC case, unanimously decided too.
One could argue that this case legitimizes the very practice that G2Play is engaged in here - that is, the purchase of a low-cost copyrighted good in a foreign country specifically for resale in the US. Gray market and all that.
However, then you'd have to figure out whether the copyright applies to a short string of otherwise useless numbers or only to the software on the CD. Or both as a cohesive unit. There very well could be case law about that, but I'm too lazy to look and it probably hasn't reached the USSC yet.
I'm pretty sure that if G2Play, in addition to e-mailing you a serial or whatever the hell they do, sent you nothing but a CD in an envelope in the cheapest manner possible it would be able to completely bypass any problems in the future thanks to Quality King. But then they'd need a fancy lawyer to shut up the software publishers, and that costs money.
As it is, I lean toward thinking that by retaining the physical copy of the software and all accompanying documentation rather than including it in the sale, G2Play is in fact liable for copyright infringement. Basically the buy low, sell high aspect of their business is A-OK, but the specific manner that they go about doing it is undeniably sketchy.
I really don't why the key should be viewed as any sort of "right of ownership." It's a security measure installed to combat piracy, but isn't the actual product, or any kind of physical representation of ownership of the product. I know we've had plenty of bad analogies, but...
It's like owning something with a combination lock on it. You can't get at what's inside without the combination, but if some guy knew the combo and you didn't, he wouldn't suddenly have ownership of the box. At the same time, if you forgot the combination, the company wouldn't be obligated to give you a new product.
Ok, that analogy is just terrible. The whole area is just nebulous and grey and impossible to build analogies for, because everything is undefined legally right now.
I don't agree even if the key was for a physical package, it's the same thing digital distribution is doing such as steam and impulse, all they do is provide you with a key.
It's one of those things but it may be a grey area though I don't think it's illegal at all and myself I have no problems with this but it may not be for everyone.
Well, not really. "Consented" digital distributors sell not just a cd key but the right to download the software (sometimes only a limited number of times) from their servers. They have a license to do this given to them by the publisher or whatever.
G2Play is purchasing physical copies and selling ONLY the serial keys, as far as I am aware. They don't sell any right to possess the software or any right to obtain it legally. Therein lies the problem - they retain the legally authorized copies. Yeah, you can copy software, but only for your own use, and only if you own it. Does purchasing a serial number mean you purchased software? Potentially no. And again, therein lies the problem.
What he said. Steam is selling the whole thing, minus any physical stuff. They're still selling you "the game" because they were told by the publisher, "You can make a bajillion copies of this and sell them, according to this license." G2Play is not doing the same thing at all.
Right. One can't have his cake and eat it too - either the license is with the physical software, the key, or both together and not exclusively. If G2Play sent the CD to you in a plastic sleeve all would be well - but they don't. So really, while snatching up cheap copies and exporting them is fine, the whole 'cd key only' thing would never fly in court.
What's good for the goose and all that...
Please go back and find the part where someone in the industry explains why it's done that way. If it was done strictly your way, people in less economically dominant/less copyright regulated countries would simply not have access to the games. Put another way, people whose nations weren't structured in a way in which they wouldn't be poor would not get to play video games (without pirating them). Additionally, game companies would make less money and therefore fewer/less good games would be made. Your opinion is a poorly thought out one.
http://www.cyanide-studio.com/forumBB/viewtopic.php?f=4&t=3663
I'm about to log off, but if someone wants to start a thread in D&D for the discussion of the copyright and EULA implications, that would be fun.