No, you are incorrect. A license to use is a property even though it's intangible. Whether or not such a property is transferable is another matter. Secondly you are confusing transfer of property title with purchase. I purchase the software package at the retail store. The store is required by law to record it as a legal purchase for income tax purposes and in many instances reporting purposes to investors and possibly suppliers.

Since my purchase of the software constitutes a transfer of title, the software industry developed the EULA to exclude the transfer of title to the software in the sale and limited what the purchaser was receiving to a license for use of the software. The software itself on the media remains the property of the software owner. However, in such an arrangement, unless specifically prohibited by agreement between the parties, the purchaser of such a license would have good reason to legally transfer their property right to use of the software through a subsequent sale. This is why many software companies modified their EULA to limit what was being sold (I can only purchase what is sold afterall) to a "non-transferable" license for use.

It's my contention that they are wanting it both ways. High prices for the product. Limiting what I'm acquiring to be non-transferable. I can buy a book, read it, enjoy it and when done either sell it or give it to someone. The software industry wants the legal right to make my book's pages blank upon transfer. Why are they so restrictive? They already have a monopoly through the copyright laws. Why demand so much from their customers?

And, why demand so much from the legal system? How much obligation do I bare as a taxpayer to protect the profits of a corporation. Why all these efforts to insist on harsher punishments for offenders. Who will bare the burden of ensuring these offenders no longer have access to the net? How will it be enforced? How many internet "probation officers' will be required and who will have to pay for them?

Having worked out there for a while (Johannesburg), I know the reality issues, I empathise on the irony of paying more for a legal download that the actual cost of a licence.

Regards
Zy

This is the problem, you're wrong.

I buy a game. I do not buy a license to use software. There is no such statement at any store, online or offline, that I have ever seen. I have never been informed of such by any clerk at the time of sale, never found any terms stated on the items. There isn't any indication of any such purchase. You go in, you purchase a nice little box with the materials enclosed, you get home, and then are defrauded by whatever license restrictions they try to pull on you at install.

If it were the license that you were purchasing, the license would be given before sale. But then if they actually gave them to us beforehand, most of them wouldn't be able to sell anything.

What you buy, and what the EULA tells you you're buying, are two separate things. The exchange of legal tender is binding. The DMCA will be ruled as the shit it is the first time it goes before even a remotely honest judge.

What EA is doing is fraud, plain and simple. I buy a game, and after I've got it home, I'm informed that I didn't buy a game, I bought the privilege to play the game until EA arbitrarily decides I can't play it anymore, assuming I actually get to play it at all. The concept of an EULA in general is pure idiocy, it has been from the start. After you give us your money, we'll tell you what you're allowed to do?

The architect comparison Jafo is making would only make sense if someone paid him to draw them a design, and then only after finishing told them they could only use it once, were only allowed to use it on a particular piece of property he wanted them to buy, and had to pay him to build it. What Jafo really does is draw someone a design with the terms known up front, unless he's a fucking crook and just got out of jail after serving time for past attempts.

The digital media industries are the only ones that get away with this shit. I'll stop sympathizing with the pirates more than the pirated when the executives signing off on fraudulent EULA's start being jailed for it.

Spore will be pirated like no game has ever been pirated before. Spore will, drm included, still be sold like no game has ever sold before, with the exception of The Sims which also sold like no game has ever sold before. If it ships with the EULA or the DRM either one, I'll applaud the pirates that steal it and feel sorry for the legitimate customers that pay the thieves to give themselves legal cover to steal it from them.

You're not thinking quite right psychoak. Most software packaging includes information that the product contained within is copyrighted and subject to a license agreement. I'm not sure what you're complaining about with EA but, if it's their verbage regarding the remedy to remove the product from your computer should you be unwilling to abide by the EULA, it's not unreasonable.

While I agree better access to the terms of a EULA prior to purchase would be desirable, I can not agree you're being defrauded by an EULA that's in the package. You're fully aware as are most software consumers of this fact.

Furthermore, to expect a company to confer to you a full title transfer to the software, worth in many cases millions of dollars, in exchange for a fifty dollar store purchase is unreasonable. I'm sure EA would be willing to sell to you such an ownership in the software - for the right price - $50 isn't it though.

People resort to cheating, stealing and piracy because they get away with it. The Americas were rife with piracy so was the Mediteranian for many years. But, as pirates became more brazen and dangerous they ensured their own demise.

Today's problem people wouldn't pirate a game they didn't enjoy playing. The only real questions are how much of this is taking place? Who is ultimately responsible? And, what sort of consequences are appropriate to the significance of such a problem?

Agreed. I never get to see the license before I buy the game so I can agree with it. What do I do if I find out I don't accept the EULA? Nothing I can do about it, frankly.

. . . and frankly, this is one of many reasons our EULA system is pretty broken. That along with the poor legibility of them to the common reader. They're so full of legal lingo you need a doctorate to understand them. I'm sure they work great in court systems, but they don't work so well when deciding to buy it or not. Frankly, I don't know anybody who reads every EULA for every piece of software on their system. It's rarely worth the hassle.

BigDogBigFeet is correct in that notice of a liscense agreement is required on the external packaging, as is clicking "I Agree" before being able to install it. Both have been held up in federal court, and at least one appeal. Companies should be required to post the terms of the EULA publicly (online, of course) so that prospective users have the opportunity to read through before purchase.



Theoretically, you are supposed to return it to the point of purchase for full refund. Although I have personally returned opened software, I have never done so for this reason, so I can't tell you what sort of hoops you need to jump through to do it.

Hahahaha they can try and they will fail its easy to hack into other peoples connections so it would be blamed on them because it would show as their ip adress plus how do you ban them when they can go to any public place that has computers with internet conections

True, but since copyright infringement is a tort, damages would have to be proven. Since they have already paid for the thing in question, it would be very hard to make a case that damages were made, especially since backups are legal in spite of any EULA.

The issue with a tort is damages have to be proven.
(torts you can get sued, but not arrested)

not all pirates are evil, theres enough people that fix stuff in games where the developers let me hanging i.e. a certain difficulty that makes the game think im using an emulator thus not allowing me to play.... even when im not using an emulator.....

some pirates actually steal, while most do not, theres plenty of games where the guy distributing the software implies that buying it gives more advantages (while sometimes it doesnt thus i would not spend 50euros on something not being worth it)

theres also no good way to get a good idea of the game your after, they sometimes release a demo... but they only show you the good stuff in there any minor drawbacks are being filterd out, ni most cases i download a game before buying it, i wanna know how it plays.. if i like it, i buy it. if i dont then i'm happy i didnt waste money, call it illegal if you like... having to pay 50euros for something u would have never liked in the first place, if some company loses money over people that dont buy becuase they dont like it, they make it illegal so that you'll have to buy in order to know the game.. thus making them money,  if i'm stolen 50 euros becuase devs nearly never make a fair demo they keep it legal

pirates also release NO-CD patches etc, without those i wouldnt be able to play more then 40% of the games i Legally bought, thus never buy from the same developers again, so the pirates are actualy making me buy stuff, thus theyre making money for developers.. whats to whine??

so now who's the pirate here?

That's a failed attempt at interpreting semantics.

You purchased a CD [and a little plastic jewel case...packaging, etc.]. Imprinted ther-on/in was a EULA.  Don't get all tied up with that notion, however....other material purchases that are not games/music/software have either inherent, stated, or implied restrictions/conditions of use.

The EULA only prohibits resale, etc when it says so.  Generally there will be a release which refers to the EULA not overriding local/specific statutory consumer rights, etc.  They are not all the same...but generally no-one notices...cos they don't bother to read them.

"they did grant it now they took it away" ? Er, no...THEY did not LOSE the DVD...YOU did.

They are under no compunction/obligation to replace what you lost.....think Hamburger in dirt once more.

No.  The difference is that if you are old enough to legally enter a contract with an Architect [in Oz that is 18] you clearly have a greater understanding of tort and contract obligations...or at least what you mean when you say "I want you to design me a house".  I do not say, nor do I need to say "oh, by the way...if you use this to build more than one house I'll have your balls".

They have inherent rights within the 'contract'/agreement/commission implied by its very nature...in SIMPLE English "Me design You house" not "me design You houses".

Combine semantics with teenage-experts in Law and the overwhelming prevalence of piracy and you will see game/software/music companies having to STATE THE BLEEDING OBVIOUS.

The content of the CD is NOT YOURS in exactly the same way as the plan I drew is NOT YOURS.

In BOTH cases you have limited usage rights.

It's called COPYRIGHT.

The only 'fucking crooks" in this thread are the people who try to justify what they are doing by attempting to apply 'spin' to what is quite simple.

Well said.

Arrrr mateys. Methinks its time the real pirates took over this thread, arrrr...

There's a quote (*Highly* paraphrased - I don't have it in front of me) from Robert Heinlein's "Starship Troopers" along the lines of "It is a necessity of any society is to insure that the right and responsibilities of it's members are in equilibrium.".

I would argue it's different because the company has gone to extra effort to make it so very clear that they did not sell me a product, for which I get both complete rights and complete responsibility, but a license to use the product.

That being the case, I don't think it's unfair to argue that I am, by definition, only responsible for what has actually come into my possession, the license. If I can prove that I *have* a license, the company is responsible for replacing the product that I have a license to use - the actual software.

Since the company has retained for itself generous rights to (Well, ownership, actually) of the software, it has also retained for itself equally generous responsibilities. Not having ownership of that software, and thus not being able to legally maintain the items in the manner with which I *would* maintain my own property, it then becomes the companies responsibility to replace the software which I have a license to use.

Don't want the additional responsibilities? Sell the software, not the license.

Jonnan

Argue all you like....it's not going to stand up to scrutiny, logical, legal or otherwise....;)

The ONLY 'difference' is they [the software/music cos] found it quaintly necessary to spell it out as the modern Net-generation have adopted the notion that socialism must be the norm, not capitalism.

Property Rights clearly need to be spelled out to the 'Me Generation' as it's clearly being lost through the convictions of convenience.

....and Heinlein's Starship Troopers was a treatise on Fascism within Western Democracies [read USA] ...so probably shouldn't be held up as something to aspire to/applaud...;)

As a citizen of the facist America described by Heinlein, I wonder how piracy survives at all under our decidedly enslaving but efficient social and economic system. Oops. We aren't facists. Too bad.

Heinlein's Starship Troopers really doesn't meet the standards attributed to Fascism - typically a nationalistic movement involving the subordination of individual liberties to the combination of business and government interests. Mere militarism (Which I will grant describes the book.) doesn't qualify.

I hate to say it - but arguments that subordinate my rights to copy software I bought to the corporate interests of the company I bought it from are far closer to the traditional definition of fascism than Heinlein's book. But even that it stretching a point, without a much longer baseline than IP law.

Of course, if you're arguing about the specific principle I brought up - that there should *not* be a balance enforced that greater rights imply greater responsibilities and vice versa, you are certainly welcome to do so - but ad hominem attacks on Bob Heinlein don't make your case - {G}.

Jonnan

I didn't attack 'Bob' Heinlein, with or without the Latin....;)

"arguments that subordinate your rights to copy software...." ....to what rights do you refer?

 

Well thanks there. Returning opened software ends up being subject to the store's policies. I worked at a store where all such returned non-defective merchandise was fully checked and upon acceptance was resealed and placed back on the shelves for sale. It was a matter of building customer loyalty.

I once was able to return an opened software package to a nameless store but, I argued that their store policy allowed for returns of opened items that weren't software. As such I had a reasonable right to assume the same policy applied to my software purchase at the time I purchased it.

And, also there was no notice posted anywhere that the store was making an exception to their standard return policy for software and electronics items only. I got my one time return and within 1 week there were notices posted everywhere in the store regarding their separate return policy for software and electronics.

Jafo, there isn't even mention of a license anywhere on the Sins case. There is no mention of a license anywhere on any game case I have at my disposal. Perhaps you should educate yourself on your own industry practices before deciding I'm just some teenager? I have stacks of them sitting around. Some of the 2k games actually have the relevant copyright information written on the backs of the cases, bloody nice of them to specify that the standard copyright protections apply, but they don't say anything extra in their EULA's so it's rather unimportant. Sorta like Stardock doesn't.

Most of my cases are in storage, but from the couple years worth I've collected since packing them up, I have EA, Ubisoft, THQ, Stardock, Valve, Sega, Atari, Egosoft and Lucas Arts original casings, none of which mention any such thing. I have never seen an EULA, let alone the contents of it, listed anywhere.

I do not have X-ray vision, and I cannot read minds. The burden of notification is on the seller, not the buyer. If it doesn't fall under basic copyright law(which everyone should know simply for their own good) and it's not disclosed at sale, it's fraud. Get over it, the pirates aren't the only thieves.

And, actually, for the record, if you've read more than the rather mediocre Starship Troopers--some of his later and better works like The Past Through Tomorrow, Time Enough for Love, or The Cat Who Walks Through Walls--you'd know he wasn't advocating fascism. Furthermore, John Steakley's Armor explored similar themes to ST with more interesting characters.

Just call me Joe Off-Topic.   

In other words, you want 200% pay for 100% work.

Ok, Whatever.

It does help me to understand your opinions on this issue better though.

That's funny most of my software package titles have a copyright notice printed on the packaging. My copy of GCII doesn't for some reason.

If you believe that your not being given a full and complete copy of the EULA is fraud you have to prove it. Have you made a reasonable effort to obtain a valid copy from the software publisher and or owner of the copyrighted materials prior to sale? Did they deny one to you? You would have to establish these as facts with proof to even allege to the satisfaction of a court that a fraud has occurred.

If my client receives two licensed sets of my work...for two separate projects I logically expect payment for both.

Being sensible, however, the second being 'mostly' [but not entirely] a repeat of the first the total fee would not be 200% ....but can fairly be around 150% or so.

If a client paid for one...but subsequently built two I can legitimately [and successfully] sue for substantially MORE than the unpaid '50%' we may have agreed to.  I am legally entitled to the profit component of the second, namely about 95% [unused materials are discounted as there was no cost to me].

It's not armchair conjecture....I've been in the industry for 35 years.... kinda know it pretty well by now....;)