Well most EULA wont work, but some aspects of the EULA in europe at least will stand if they go to court.
Since Vista MS has specified you license the software from them and dont own it, thats why you can still buy used copies of XP, and transfer them around on PC's, which you cannot do on Vista and especially Windows7, this is licensed to the machine you install it on (first time), if your PC craps out and you buy another one, you need to buy another copy of Windows 7. Now one way MS is trying to absorb the XP copies is to give you the Windows XP virtual PC in Windows 7, this id doanloadable free from MS for Windows 7, but you need a XP license for it. Now if you read the agreement on that, you will find that once you assign your XP license to Windows 7, it will be bound and no longer transferable. Nice little trick that dont ya think.....
Just wanted to point out that you can install Windows 7 on up to 3 PCs if you buy the upgrade instead of the full install.
And the regular XP Virtual PC is free and runs in Windows 7, so you don't need to use the built-in one. Mainly because some processors don't support Windows 7's native Virtual XP. Which means no need for an XP key.
There is nothing special about EULA's or other licensing agreements. It's a contract, like any other (like the one you sign when you apply for a credit card or finance a car or house). Just like ANY contract, it must adhere to standards of the law (including common & torte law) in order to be enforceable. Any EULA is no more or less enforceable then any other type of contract.
However, don't fool yourself into thinking that just because there is something in contract that you don't like means that it's illegal OR immoral. The whole point of spelling things out in contracts and licensing agreements is so that both parties know what they are agreeing to in advance and there is no ambiguity about their obligations to one another Provisions in contracts, by default, ARE considered binding UNLESS they violate a well established legal principle (like the Right of First Sale in the example given).
Note also just because one Court makes a ruling about something once, doesn't mean that ruling will stand. Rulings get reversed on appeal all the time.
I just wish this game had some luck on its side foe once. Im a big fan of Stargate and would like to try out the game.
(AAAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHH dances with Vala Mal doran)
All my opinions are just that..opinions. If you like my opinions..coolness.If you dont like my opinion....I really dont care. Playing: ESO, WOT, Smite, and Marvel Heroes
Just because a company can force you to sign something before you use their product doesn't make it legal. And even in the cases where it does, it doesn't make their actions ethical by default.
There is nothing special about EULA's or other licensing agreements. It's a contract, like any other (like the one you sign when you apply for a credit card or finance a car or house). Just like ANY contract, it must adhere to standards of the law (including common & torte law) in order to be enforceable. Any EULA is no more or less enforceable then any other type of contract. However, don't fool yourself into thinking that just because there is something in contract that you don't like means that it's illegal OR immoral. The whole point of spelling things out in contracts and licensing agreements is so that both parties know what they are agreeing to in advance and there is no ambiguity about their obligations to one another Provisions in contracts, by default, ARE considered binding UNLESS they violate a well established legal principle (like the Right of First Sale in the example given). Note also just because one Court makes a ruling about something once, doesn't mean that ruling will stand. Rulings get reversed on appeal all the time.
I am trying to dig up more on that particular case, but the very real trend is that software makers are trying REALLY hard to keep most EULA disputes from going to verdict. Why? Two reasons:
1. Software companies, as an industry, are trying to avoid any solid precedents coming down that are going to set hard limits on what they can and can not do. Up to now, they have had things mostly all their own way, and the rights of the "customer" are fairly undefined and since they are, there is no single standard they must meet. Once the courts say "You can do this, but you can't do that.," everyone from game makers to the guy in the basement writing apps for an I-phone may be affected. Not something the software companies want. At all. And, technology usually outstrips the law, by 5-10 years or so, before the law catches up. The law is finally starting to catch up.
2. In particular, game companies and others selling "virtual property" want their products considered both a product AND a service, to constrain customer rights (as seen in that cited case from the paper). The companies say "Here is our EULA, our terms of SERVICE, you can do this, but not that, and WE can do anything we want at any time and you have no legal recourse (many game EULAs actually say this, and there is NO WAY in hell that is legal/legally enforceable). They further state that the accounts are the property of the company and access to it is controlled by them and they can turn around and suspend it at any time. Much of that is probably not enforceable in a lot of US states, but let's pretend it is for the moment. The companies say, you can't sell accts, game disks, in game currency, items for cash, and similar things. Some of that violates first use/fair use doctrine, but much doesn't, if it is a true "service" being provided.
But then the game companies turn around and start selling people virtual products. People buy that Sword of Uberness for $10 or that Ride-able Glass Rhino for $20 in the RMT shop, and all of a sudden customers have Virtual Property. Any property, virtual or otherwise, comes with a set of rights to the buyer. If a customer buys $1000 worth of virtual property in a game, and the company denies access for anything besides non-payment, is it legal? Not yet answered by a court, but not if it was considered real property. If the EULA says, "We can turn off you acct at any time," but if that deprives the player access to property he/she BOUGHT, and does not refund the purchase price, is that legal? Probably not. If the company puts out a patch/update/expansion to the game, and the value of that Sword of Uberness is damaged/reduced because the company wanted to sell the Sword of Uberness +2, and they company intentional undermines the usefulness of the original item to make people buy the new one? Is that legal? Hasn't been answered yet, but probably not. The game companies are treating what they offer as a service on one hand, and a product on the other, depending on what is better for them at the time. That is not going to last.
Bottom line is that most things can not be both THIS and THAT under the law. The law abhors the undefined. If something is a product, customers have these consumer and legal rights. If something is a service, customers have those consumer and legal rights. Right now, software companies in particular do NOT want that question resolved, because they have the best of both worlds, and a solid decision going either way can only hurt them.
It depends on whether the product being sold is defined as "Property" or "Service". A different set of rights are implied for each type of product. It really comes down to what the company advertises the Product to the end user. The VAST MAJORITY of SAS or ASP.... and this would include MMO's .... structure their Products as SERVICES NOT PROPERTY. That's how they advertise their products. That's what they put in their Licensing Agreements, etc. Alot of players would LOVE to construe that they actualy OWN some of those digital bits.... but WISHING it were so does not make it true.... and flies in the face of the facts.
Note, there ARE exceptions to this.....those companies that go out and sell you "Virtual Trading Cards" and stuff like that, basicaly tell you they are selling you virtual property... there are a few other games/services that structure things like that but most don't.
What MMO's (and other ASP's) do is really no different then what movie theatres do when they sell you a ticket to see a show....or Amusment Parks do when they sell you an admission ticket to thier park. They may even customize the experience just for you.... but at the end of the day, what they are selling you is an Entertainment Service... the right to visit and experience thier content...they are NOT selling you the content itself. When you buy a ticket to an amusement park... you DON'T OWN the rides you take.... NOR do you have the right to tell the park how to design thier rights. This does not mean you have NO RIGHTS... you have a right to access the service you purchased.... within certain reasonable limitations.
The AutoCad situation which that case involved is quite different. That product doesn't follow the Software As a Service model..... it's traditional shrink wraped software. It's not client/server. Everything you need to access and fully use the program is contained on those disks you purchase.
Essentialy what the Court ruled is that he was SOLD the physical media and therefore owned that physical media and had the right to resell it.
What you are actually concerned with is who owns the DATA/Content that is created/gathered with a particular service offered. That is something which my company has intimate knowledge of since we ARE in the SAS business (b2b services, not entertainment). If you check the applicable case law.... you should find that ownership of the data is determined by the terms of the contract. That's something that our corporate lawyers spent ALOT of time researching before we went into business.
For the players sake, they really should hope that remains true. From a purely technical stand-point, I can tell you if that a company is overly hamstrung in how they can modify the service they offer... you WONT have functional online services.
I agree with most of that, because it is well, correct.
Part of the problem that remains is that games MMOs are going more and more to RMT models, so in effect, the line is being blurred between whether an MMO, when there are RL money transactions involved, is solely a "service" as the MMO makers contend. My guess is probably not. If a game (or other) company sells a player a bunch of virtual property and then denies access (by suspend/canceling an acct, without offering a cash refund for the virtual property) would that be a violation of property rights? In many cases, the answer is "probably". It becomes (or could become) the equivalent of a company renting a person a storage unit, and not letting them access what is inside.
Another thing is what happens when a game company patches/changes a game damaging the value of the virtual property? Is that Actionable? Could be. I seem to recall a person/company in the UK that bought a bunch of "virtual real estate" in Second Life for something on the order of USD $250k. What if the company that made Second Life expanded the playable surface in the game by 10X the very next day, rendering that 250k of virtual real estate worth much less? Actionable in court? Maybe.
The other part of that cited case from the news story, aside from the hard media resale issue (which was more or less difinitivly answered), was the fact that the EULA that Autodesk had written, was crap, and probably violated one or more of the UCC or customer rights statutes in Washington State. That is the part the was really interesting, was that the Court clearly reflected that the EULA was not the be all and end all of the transaction, even if the buyer "agreed" to it, because the contract was defective and therefore unenforcable. That is not unusual for contracts in general, but is one of the first times a software EULA has been taken to task and on the point the contract was so one sided, as written, as to be inequitable under the law.
That is the point. Software makers in particular have been getting away with making people think they have no/very limited rights, because of the EULAs, and that court decided that that was not the case.
Well I remember in the past that the license agreement was always in side the box, so basically caused issues on the premise, how can you agree to something you cant read before you open the box, and in the older cases the agreement was not in the software but the license inside the box. I remember some cases were thrown out due to the software being licensed only by the paper inside the box, not when it was being installed, so they broke the law (or whatever) forcing people to agree to a license that couldnt be read until the box had been opened, thus making the software un-returnable.
Now all software has its agreements as you install or upgrade it.
As to virtual property I can see in the future more and more companies will control the virtual property and these items will be taxed, its already noted that millions are spent in such virtual property that never are taxed, nevermind buying goods in one country and not paying the tax certain gov's would like to tax you with. It brings in a whole new ballgame if the Gaming companies try and control these virtual items, as should they actually pay tax on them, and if so, which countries should get there cut, I know already that the UK and US are in discussions with ways in which to do cross border taxing for online services.
A whole new area of taxing is on the horizon here.
I remember some cases were thrown out due to the software being licensed only by the paper inside the box, not when it was being installed, so they broke the law (or whatever) forcing people to agree to a license that couldnt be read until the box had been opened, thus making the software un-returnable. Now all software has its agreements as you install or upgrade it.
Explain to me how that is different then. If I don't get to read the agreement until I install the product, then I still have to get the product out of the box to do that, which makes it un-returnable. Seems to me that I'm still not allowed to see the agreement until AFTER I've already paid for the product, which more or less forces me to agree to it no matter if I actually am willing to or not.
Comments
Just wanted to point out that you can install Windows 7 on up to 3 PCs if you buy the upgrade instead of the full install.
http://www.microsoft.com/windows/offers/windows-7-family-pack.aspx
And the regular XP Virtual PC is free and runs in Windows 7, so you don't need to use the built-in one. Mainly because some processors don't support Windows 7's native Virtual XP. Which means no need for an XP key.
There is nothing special about EULA's or other licensing agreements. It's a contract, like any other (like the one you sign when you apply for a credit card or finance a car or house). Just like ANY contract, it must adhere to standards of the law (including common & torte law) in order to be enforceable. Any EULA is no more or less enforceable then any other type of contract.
However, don't fool yourself into thinking that just because there is something in contract that you don't like means that it's illegal OR immoral. The whole point of spelling things out in contracts and licensing agreements is so that both parties know what they are agreeing to in advance and there is no ambiguity about their obligations to one another Provisions in contracts, by default, ARE considered binding UNLESS they violate a well established legal principle (like the Right of First Sale in the example given).
Note also just because one Court makes a ruling about something once, doesn't mean that ruling will stand. Rulings get reversed on appeal all the time.
I just wish this game had some luck on its side foe once. Im a big fan of Stargate and would like to try out the game.
(AAAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHH dances with Vala Mal doran)
All my opinions are just that..opinions. If you like my opinions..coolness.If you dont like my opinion....I really dont care.
Playing: ESO, WOT, Smite, and Marvel Heroes
Just because a company can force you to sign something before you use their product doesn't make it legal. And even in the cases where it does, it doesn't make their actions ethical by default.
Wrong is still wrong at the end of the day.
The History of the Order of The Golden Shields
I am trying to dig up more on that particular case, but the very real trend is that software makers are trying REALLY hard to keep most EULA disputes from going to verdict. Why? Two reasons:
1. Software companies, as an industry, are trying to avoid any solid precedents coming down that are going to set hard limits on what they can and can not do. Up to now, they have had things mostly all their own way, and the rights of the "customer" are fairly undefined and since they are, there is no single standard they must meet. Once the courts say "You can do this, but you can't do that.," everyone from game makers to the guy in the basement writing apps for an I-phone may be affected. Not something the software companies want. At all. And, technology usually outstrips the law, by 5-10 years or so, before the law catches up. The law is finally starting to catch up.
2. In particular, game companies and others selling "virtual property" want their products considered both a product AND a service, to constrain customer rights (as seen in that cited case from the paper). The companies say "Here is our EULA, our terms of SERVICE, you can do this, but not that, and WE can do anything we want at any time and you have no legal recourse (many game EULAs actually say this, and there is NO WAY in hell that is legal/legally enforceable). They further state that the accounts are the property of the company and access to it is controlled by them and they can turn around and suspend it at any time. Much of that is probably not enforceable in a lot of US states, but let's pretend it is for the moment. The companies say, you can't sell accts, game disks, in game currency, items for cash, and similar things. Some of that violates first use/fair use doctrine, but much doesn't, if it is a true "service" being provided.
But then the game companies turn around and start selling people virtual products. People buy that Sword of Uberness for $10 or that Ride-able Glass Rhino for $20 in the RMT shop, and all of a sudden customers have Virtual Property. Any property, virtual or otherwise, comes with a set of rights to the buyer. If a customer buys $1000 worth of virtual property in a game, and the company denies access for anything besides non-payment, is it legal? Not yet answered by a court, but not if it was considered real property. If the EULA says, "We can turn off you acct at any time," but if that deprives the player access to property he/she BOUGHT, and does not refund the purchase price, is that legal? Probably not. If the company puts out a patch/update/expansion to the game, and the value of that Sword of Uberness is damaged/reduced because the company wanted to sell the Sword of Uberness +2, and they company intentional undermines the usefulness of the original item to make people buy the new one? Is that legal? Hasn't been answered yet, but probably not. The game companies are treating what they offer as a service on one hand, and a product on the other, depending on what is better for them at the time. That is not going to last.
Bottom line is that most things can not be both THIS and THAT under the law. The law abhors the undefined. If something is a product, customers have these consumer and legal rights. If something is a service, customers have those consumer and legal rights. Right now, software companies in particular do NOT want that question resolved, because they have the best of both worlds, and a solid decision going either way can only hurt them.
But the party may soon be over....
BurntVet,
It depends on whether the product being sold is defined as "Property" or "Service". A different set of rights are implied for each type of product. It really comes down to what the company advertises the Product to the end user. The VAST MAJORITY of SAS or ASP.... and this would include MMO's .... structure their Products as SERVICES NOT PROPERTY. That's how they advertise their products. That's what they put in their Licensing Agreements, etc. Alot of players would LOVE to construe that they actualy OWN some of those digital bits.... but WISHING it were so does not make it true.... and flies in the face of the facts.
Note, there ARE exceptions to this.....those companies that go out and sell you "Virtual Trading Cards" and stuff like that, basicaly tell you they are selling you virtual property... there are a few other games/services that structure things like that but most don't.
What MMO's (and other ASP's) do is really no different then what movie theatres do when they sell you a ticket to see a show....or Amusment Parks do when they sell you an admission ticket to thier park. They may even customize the experience just for you.... but at the end of the day, what they are selling you is an Entertainment Service... the right to visit and experience thier content...they are NOT selling you the content itself. When you buy a ticket to an amusement park... you DON'T OWN the rides you take.... NOR do you have the right to tell the park how to design thier rights. This does not mean you have NO RIGHTS... you have a right to access the service you purchased.... within certain reasonable limitations.
The AutoCad situation which that case involved is quite different. That product doesn't follow the Software As a Service model..... it's traditional shrink wraped software. It's not client/server. Everything you need to access and fully use the program is contained on those disks you purchase.
Essentialy what the Court ruled is that he was SOLD the physical media and therefore owned that physical media and had the right to resell it.
What you are actually concerned with is who owns the DATA/Content that is created/gathered with a particular service offered. That is something which my company has intimate knowledge of since we ARE in the SAS business (b2b services, not entertainment). If you check the applicable case law.... you should find that ownership of the data is determined by the terms of the contract. That's something that our corporate lawyers spent ALOT of time researching before we went into business.
For the players sake, they really should hope that remains true. From a purely technical stand-point, I can tell you if that a company is overly hamstrung in how they can modify the service they offer... you WONT have functional online services.
I agree with most of that, because it is well, correct.
Part of the problem that remains is that games MMOs are going more and more to RMT models, so in effect, the line is being blurred between whether an MMO, when there are RL money transactions involved, is solely a "service" as the MMO makers contend. My guess is probably not. If a game (or other) company sells a player a bunch of virtual property and then denies access (by suspend/canceling an acct, without offering a cash refund for the virtual property) would that be a violation of property rights? In many cases, the answer is "probably". It becomes (or could become) the equivalent of a company renting a person a storage unit, and not letting them access what is inside.
Another thing is what happens when a game company patches/changes a game damaging the value of the virtual property? Is that Actionable? Could be. I seem to recall a person/company in the UK that bought a bunch of "virtual real estate" in Second Life for something on the order of USD $250k. What if the company that made Second Life expanded the playable surface in the game by 10X the very next day, rendering that 250k of virtual real estate worth much less? Actionable in court? Maybe.
The other part of that cited case from the news story, aside from the hard media resale issue (which was more or less difinitivly answered), was the fact that the EULA that Autodesk had written, was crap, and probably violated one or more of the UCC or customer rights statutes in Washington State. That is the part the was really interesting, was that the Court clearly reflected that the EULA was not the be all and end all of the transaction, even if the buyer "agreed" to it, because the contract was defective and therefore unenforcable. That is not unusual for contracts in general, but is one of the first times a software EULA has been taken to task and on the point the contract was so one sided, as written, as to be inequitable under the law.
That is the point. Software makers in particular have been getting away with making people think they have no/very limited rights, because of the EULAs, and that court decided that that was not the case.
Well I remember in the past that the license agreement was always in side the box, so basically caused issues on the premise, how can you agree to something you cant read before you open the box, and in the older cases the agreement was not in the software but the license inside the box. I remember some cases were thrown out due to the software being licensed only by the paper inside the box, not when it was being installed, so they broke the law (or whatever) forcing people to agree to a license that couldnt be read until the box had been opened, thus making the software un-returnable.
Now all software has its agreements as you install or upgrade it.
As to virtual property I can see in the future more and more companies will control the virtual property and these items will be taxed, its already noted that millions are spent in such virtual property that never are taxed, nevermind buying goods in one country and not paying the tax certain gov's would like to tax you with. It brings in a whole new ballgame if the Gaming companies try and control these virtual items, as should they actually pay tax on them, and if so, which countries should get there cut, I know already that the UK and US are in discussions with ways in which to do cross border taxing for online services.
A whole new area of taxing is on the horizon here.
Explain to me how that is different then. If I don't get to read the agreement until I install the product, then I still have to get the product out of the box to do that, which makes it un-returnable. Seems to me that I'm still not allowed to see the agreement until AFTER I've already paid for the product, which more or less forces me to agree to it no matter if I actually am willing to or not.
The History of the Order of The Golden Shields