There's a funny opinion most Americans seem to hold about the First Amendment - namely that it a universal right to free speech anywhere. It is not - it is the freedom from GOVERNMENT interference with free speech. If a private entity wishes to restrict your speech on their property, they have the right to do so. Your only remedy as a consumer is to not use their property. This argument comes up on web forums like this all the time, there is absolutely no question of the answer.

Unless you are asserting that Blizzard cannot exercise its rights on its own servers, you cannot strip Blizzard of the ability to terminate a person's use of those servers for any reason it sees fit.



The legality of Glider is not immediately obvious. It can be viewed as a copyright-infringing derivative work by the fact it cannot be used except in conjunction with WoW. Your entire case fails if this is indeed ruled infringement.



Assuming this legally qualifies as infringement, he *is* legally liable for this. His program allows the infringement, he has control over whether the infringing acts continue, and he is profitting from the infringement. Whether he committed each act of copying is irrelevant.

That would be more interesting, if it had anything whatsoever to do with the conversation at hand.

Please look back through the thread - Looking over this, no one here has contested whether or not Blizzard has the right to disconnect an account for violating their Terms of Service.

The question is whether or not "Glider" Violates Blizzards Copyright. It doesn't do so directly, and I think there are fatal, and fairly obvious "The Sky Is Blue" flaws in the case to say it causes contributory infringement.

You pulled this quote out of context from the long, drawn out, annotated, and referenced post in which showed *why* that opinion made no sense. You could argue that I don't understand the UCC law that I referenced, or that I don't understand the copyright law that I referenced, and show how I am wrong - you are in fact welcome to do that.

Which makes me wonder why, exactly, you assert that I made an argument that no one in this ten page thread has made.

You are rapidly going for 'twit' status.



The legality of Glider *is* immediately obvious, for the simple reason that the legality of *anything* is immediately obvious - there has to be a law actually against it for it to be illegal. That's the default - if there's not a law against it, it's legal.

So, for Glider to be *illegal*, it has to do something (or be designed specifically for it's user to do something that is) that is, in and of itself, *against* *the* *law*.

It's not against the law for software to interact with other software - I defy you to reference a law that says it is.

It is not against the law, perhaps sadly, to 'Cheat'. Therefore, enabling someone to cheat is not against the law.

It is not against the law to run a program you have paid for - I will post that again, since some people don't seem to get that fact


Therefore, even if Glider ran the WoW program on your behalf, it is still not doing anything *illegal*.

Now - if you can provide something that Glider does that is arguably illegal, then you're comment "The legality of Glider is not immediately obvious" makes sense - but interacting with another program doesn't make a program "derivative Work".

You don't *want* interacting with another program to make a program "Derivative Work" either - dear god - think about it for a half a second please. Every program you have ever used would be illegal


We established this - again, you pulled what I said out of context, in this case deliberately acting as if I had said the exact opposite of what I posted - Sir, you are dishonest.

Contributory Infringement is a crime - but for this to be contributory infringement, the court has to make two separate nonsensical judgments that deprive me of rights under the law - depriving me of consumer protections under the UCC and standing § 117. Limitations on exclusive rights: Computer programs on it's head respectively.

If you can come up with a way for Glider to be considered contributory infringement without these two bits of nonsensical stupidity, then you are evidently a better lawyer than either the judge *or* Blizzards attorneys - go for it. Or show how I am wrong about what one of those says.

But please, actually read what I said and quit twisting it - The only good thing about this judgment is that it is an easy to read, straightforward opinion. It's bloody *easy* to see where it contradicts the law, it's *easy* to find the relevant law and lay it out, and I went to trouble bordering on obsessive compulsive to reference it all in the posting.

I could be wrong of course, but it not like I didn't give you all the information required to prove I'm wrong - use it.

Jonnan

Special emphasis on the important words. The court ruled in this case that we are not owners. We are licensees.

While he does not explicitly state it, psychoak's position that all EULAs are uninforcable does imply this. The Terms of Use which allow Blizzard to terminate accounts are contained in the EULA, which he holds as invalid.

If you honestly think enforcing an EULA constitutes fraud, contact your local state's attorney immediately. Fraud is a serious charge, you should have it addressed.

As for your class action suit, that might be possible if the servers were shut down overnight. If Blizzard were to give reasonable notice before shutting down, there would be no cause for action. I love how you consider anything a user does as legal, and anything a company does as fraud.

For that matter, the class action view goes directly against your stance on copyright. Their servers are theirs to do with as they will, as long as they stop billing you when the servers shut down. It doesn't affect your copy of the game at all.

Legally, there can be no sale unless both parties agree to the transaction. Clearly Blizzard does not agree the transaction is a sale of "owner" interest in the copy, they are selling you a license to use the copy. Blizzard has done everything in its power to indicate the transaction is NOT a sale.

Also, you would need to defend this assertion against this possible interpretation (please note this is a POSSIBLE interpretation, never actually addressed in any court AFAIK):

"The seller (Blizzard) contends physical delivery of goods occurs when the purchaser installs the software onto their computer, not at the retail store. The UCC specifically allows for transactions where transfer of funds and physical delivery of goods are not simultaneous...."

Under that possible interpretation of a sale, the conditions of the license would be presented when the transaction is finalized. I'm not saying this argument is valid, as far as I know it has never been used. That doesn't mean you don't need to have a counterargument ready for when someone does eventually bring it up.

Oh for pities sake - you really like that "Quote out of context" trick don't you.

Note: If title to the goods is not passed, or is not the *intent* of the contract, we're out of UCC title 2 territory - and the simplified provisions of a sale of goods *do* *not* *apply*. We are in *Full* contract law territory, where an EULA doesn't pass even basic muster. This becomes important in a minute.

Aren't those other provisions interesting - because, what they make quite clear is that the note in part two isn't about *whether* title passes, but *when* title passes. It either passes at the moment the sale is cleared, *or* it passes at some other specific time. If we're *not* passing title (And to be clear, this is title to the physical goods, in this case the DVD/CD - not the intellectual property contained on it), then we don't have a sales contract.

So how do I know that title passes?
Well - the UCC committee was kind enough to provide me with a definition

Good thing to, because to form a contract like an EULA you have to have six things -
Offer - Some one offers you a good or service
Acceptance - I choose to take them up on it
Mutual Assent - We've verified that both of us are happy that I understood the terms etcetera.
Capacity - I am an adult, not drugged, etcetera
Consideration - We exchanged goods, services, money et al
Legality - Nothing was done that violated the law

And that's where this becomes really important - because the definition of Offer, Acceptance, and Mutual Assent are, for the sake of convenience, MUCH easier in a simple sale of goods than it is in the rest of contract law. Among other things - I can *never* accept an offer without actually communicating that fact to the people that made the offer - not in full contract law land - I gotta call them, or in the case of a formal contract, *SIGN* the damn thing.

So, if we're *not* transferring title, then the EULA can't be valid, in which case, we're transferring title.

So much for that theory. Am I still bound the the other portions of the EULA if I've bought the item and accepted it when I installed.

Here is the *only* place this actually gets complicated - because it depends on whether or not I'm a merchant or a consumer - and that depends on what's being bought and sold and how I intend to use it.

Because it fairly easy for me to accept a sales contract as a consumer, and absolutely easy for me to do so as a merchant between merchants.




So, the short form is that is you are using it for personal use, you are *probably* a consumer. If you're buying it for your business, or it's important enough that you hired a specialist that does 'this sort of thing' you are almost certainly a merchant.

In the interests of brevity ("too fuckin' late for *THAT*" I hear you cry), despite the fact that I fully expect Willy to pull something out of context again, the differences between consumers and merchants is listed in about eleventy-hundred spots in UCC section 2, and I refuse to list *all* of them. This is the important one for our purposes.

There are a bunch of other differences between merchants and consumers, but this is the one that make EULA's non-binding *ON CONSUMERS* according to most courts (including the ninth). The 7th and 8th circuits have found that an EULA forms a separate contract, *after* the sale of the goods, and accepting it during an install means you've formally agreed - I think this is bad logic - if it's a separate contract, there has to be separate consideration, but SCOTUS has never ruled, so it stands for the moment in these two districts, and is a non-binding precedent anywhere else. And of course Maryland and Virginia actually signed UCITA into law, so if you live there you're just screwed - tell your legislature to fix that.

But the other districts have found that the EULA is a modification of the sale contract, which means it is *binding* upon merchants but must be separately signed by the consumer - just unwrapping it and installing the program is insufficient.

Which is why it is binding upon police departments, but not World of Warcraft clients - when you buy 4,000 licenses for your police department, yeah, you're a 'merchant', when you buy a single copy of photoshop - if you use it professionally, then you're a merchant.

I suppose Blizzard could even make an argument that if someone uses WoW to make a living from, *they* could be a professional, though it's an awfully weak argument to prove. But the vast majority of people, outside the 7th and 8th districts, Maryland and Virginia, are *not* going to be bound by that EULA.

So - We are now into "If you're that determined to think you have no rights under the law, go for it territory" and for those that want more information, I recommend Business Law with UCC Applications - My university class was taught by a shark that walked like a primate out of this book (10th edition), and it is really good. I will manfully swallow any "I know you are but what am I" Impulses - I called him a twit, he called me a moron, and at least we're arguing about merchants versus consumers which actually *has* split the district courts.

All that said - No, the UCC protects you from this kind of a modification to an agreement after you bought a game, shrink wrap be damned - Impulse (where I had to accept before downloading TA) actually has a much stronger case than anyone that sold it in the box.

Jonnan

Oddly enough try treading the side of the WOW box.. It does say you must agree to the EULA and TOS agreements to licence the contents, or somthing to that effect ( i am currently at work and not privy to the exact wording) and if you do not want to agree to them then Blizzard will reimburse you for the Game. ( i am currently at work and not privy to the exact wording)( I have the game boxes at home) So the "post sale" Argument is moot

"The use of this software product is subject to the terms of an End User License Agreement available at http://www.worldofwarcraft.com/legal/eula.html, and all use of the product is subject to the World of Warcraft Terms of Use which you must accept before you can register an account. Requires subscrition to play. Internet connection required. Additional online fees and subscription fees may apply, and player is responsible for all applicable Internet and subscription fees."

That's the exact wording on the box. The argument is that the EULA is nonbinding as the complete terms are not available at purchase - although they are, if the customer put even minimal effort into looking up the EULA before purchase, but that's personal responsibility and no one likes that.

It means that WOW is so fucking boring(as most MMO's are) that it's more interesting if you let the computer play for you outside of various special quests that take hours of grinding to get to.

The justification you asshats are using is that a judge has ruled in an obviously wrong manner, therefore it's right. Slavery was legal, ruled legal on many occasions. Segregation was legal, ruled legal on many occasions. The barring of various classes from voting and other rights considered basic has been legal, ruled so on many occasions. That's just in this country, let alone erroneous and immoral rulings in the rest of the world.

Get a clue.

HG, Blizzard will let you ship the game to either them or the retailer you got it from at your expense. Your costs in obtaining it are not refunded, only the purchase price. Violating a contract makes the party in breech liable for more than just returning their payment. I'm not paying $20 to not own a $50 game. Notification of a license is not acceptance of a contract. I have to actually read and agree to it before sale, not just be told there is one.

Willy, Blizzard loses the option of not agreeing to sell their product when they sell it. Further, if you really think shutting down the servers with customers still on the hook wouldn't get them a class action law suite dangerous enough that they'd settle out of court in a heartbeat, you're very naive. They wouldn't have to do it on day one, the game is still being sold now. Even a year after release would have cost them a bundle.

You can't buy contracts, you have to agree to them. It's the whole point of having contract law, to protect the consumer from assfuckers like EA.

I'm not missing the point. I am not at the whim of a judge. Judges have no right to remake the law, I do not recognize their interpretations when they are obviously wrong. I will go to jail before I bend to such. It is an illegal ruling done by a judge violating his oaths of office. He should be stripped of his office and charged with treason for failing to uphold them. If things get bad enough, I'll be one of the nuts knocking them off before I become one of the sheep letting my government shear me.

Since you aren't even being marginally reasonable I'm ignoring your utter fucking idiocy in saying Blizzard never agrees to sell their product when they sell it. How did you even write that?

All the while, those of us with a first grade reading level will continue to ignore them.

How about the times when "activist judges" change the country for the better? Separate But Equal was not struck down by an act of Congress, but by judges. Miranda rights were mandated by judicial fiat. So were abortion rights, and about a thousand other things you take for granted. But when one ruling goes against what *you* consider right you want to charge the guy with treason (not possible, read the damn Constitution sometime) and start "knocking them off"? It's a federal crime to even threaten that, so I'll assume you aren't serious.



From the MDY v Blizzard decision we are discussing:



I wrote it because I was paraphrasing the stance Blizzard holds and the court upheld. Clearly Blizzard never had the intention of "selling" anything, only "licensing" it.

I'm sure Jonnan001 will say I'm quoting that out of context, but I didn't feel I needed to quote a page and a half of the decision to illustrate my point.

Yes They Are illegal because they are not made on license of game vendor... and nor are supported...