So you're saying MDY was able to reverse engineer parts of WoW to make Glider, test it, and continue to revise it as Blizzard changed detection capabilities - all without using a single copy of WoW. Damn, that guy is a good programmer.

In reality, MDY got multiple accounts banned in these efforts, and they admitted so in their depositions. This bit of information simply didn't get mentioned explicitly in the ruling.



That's fine, as long as you have warnings in the topic title, have a full text agreement we actively have to agree to before we see your content, and collect information on each reader for enforcement and billing purposes.

That, and generally the website owner holds the rights to user posts. There are exceptions, but they are rare.



They have him on the hook for that as well. Namely, Tortious Interference with Contract. Even Jonnan will admit the Terms of Use establishes a valid contract, exchanging the player's agreement to Blizzard's rules for access to their servers (as compared to the EULA, which adresses the player's access to the contents of the disc/their own hard drive). The damages for the contract interference alone are likely to bankrupt MDY, but not Donnelly himself, as MDY is a limited liability company.

What confuses me is why Blizzard did not pursue criminal charges. Certainly any Glider user who got banned and bought another copy to continue using Glider committed fraud (entering a contract with the intent to break it). While this obviously couldn't apply to every Glider copy sold, even 10-15k counts of fraud and conspiracy to commit fraud would end Donnelly's career rather permanently.



This would depend on how you define "independently created computer program". Given how intregral the WoW program was to the development of the Glider program, this is not obvious. Ironically, this defense WOULD be allowable if a third party were to alter the Glider program to make it compatable with other MMOs.

The reverse engineering allowances were emplaced to shield people who make wider programs, such as game companies when they insure interoperability of their program with various operating systems and/or component drivers.

The part of the DMCA Blizzard claimed was violated was the provisions against selling technology to circumvent program access restrictions. Since the entire WoW program could theoretically be read bit-by-bit off of a hard drive, the Glider program doesn't qualify.

What I find truly ironic is that MDY didn't sell the Glider program, they licensed it under its own EULA! And had a pretty draconian phone-home DRM scheme added onto it, as well.

OK...12 pages on and have we any results/conclusions?

 

.....other than Jonnan001's decidedly shinier fingertips?...

 

The fun part is none of this will change anything, other than making someone's dull day a little less...

Meh - if I can get a few gamers to realize they not only have rights, but that you can actually prove it in a court of law, I will name the calluses on my index fingers in honor of Willythemailman and consider it time well spent - .

Jonnan

I'm just not willing to demand 'rights' that some believe to be 'mine' when they adversely impact on the rights of others.

Copyright, TOU, EULA, et al is to protect the owner.

Purchasers/users can vote with their feet if they feel the owners' rights fuck them over and simply avoid it/them.

That's this whole issue in a nutshell.

If Blizzard wants your balls if you do not abide by whatever rules they apply...then they should be entitled to them.

They will never get mine...as I will either abide by their rules...or not purchase the game.

Hah! From just before I became a regular Dilbert reader. But how the heck would you describe a Dilbert mindset? To me, the strip is some sort of powernerd cross between Cathy at the office and Pogo on heavy psychedelics.

I'd check the gold in that Google - that appears to be pyrite.


Again:
§ 2-104. Definitions: "Merchant"; "Between Merchants"; "Financing Agency".
(1) "Merchant" means a person that deals in goods of the kind . . .
Resell = dealing in goods = Merchant.

§ 2-209. Modification, Rescission and Waiver
(2) An agreement in a signed record which excludes modification or rescission except by a signed record may not be otherwise modified or rescinded, but except as between merchants such a requirement in a form supplied by the merchant must be separately signed by the other party.

Lets say it again - a merchant can be bound by terms he didn't see, a consumer can't be bound without signing something (Or an electronic Equivalent).

Jonnan

Brilliant.

First of all - I've just gone through 12 pages of thread looking for even one reference to any link on the box and failed to find it so frankly you're going to have to back that up - although I hardly think that would be sufficient "Oh, we have a contract, and you can see it too - you just have to write down this information, drive home thirty miles, pull it up on the web, read through it, consult a lawyer, drive back to the store, buy our product, drive back home, install it, verify the the EULA we have here matches what was on the website, accept it, and play! Just the kind of simple covenant so very implied by the term 'Undue Burden' in the UCC!" Excuse me, but would you accept that from your Bank or Mortgage company? They must LOOOOOOOOOOOOOOOOVE you!

Second of all - since there has been no argument that the EULA's we're talking about would only be feasible because of this presumed link to an online EULA or a TOS agreement (Well, actually *I* made some arguments regarding the separateness of the TOS, but I don't think anyone else has), indeed the supporters of this have been quite clear that these EULA's apply to *all* software including one, that point is kinda irrelevant.

Thirdly - again, since I haven't seen any post implying that this was in these or any other way limited to the EULA of MMORPG's, why in the world would any of this render it offtopic?

Sooo - I'm not seeing your point?

The mindset is not from the comic, but the use of the character. Willy only appears in a few strips. Dilbert is trying to get something from some officious, obstructionist ass. When he asks what he needs to do to get whatever it was he was asking for, the reply was "BRING ME THE HEAD OF WILLY THE MAIL BOY!"

Needless to say, the mindset of someone calling themselves Willy is that they feel like the enemies you have to kill so many of to get some meaningless quest item in a game. The day I claimed that name was not a particularly high self-esteeem day, lo those many years ago. The name just stuck after that.

The statement was "As it has been repeadtily said" - which in many places would be commonly assumed to imply "Recently, in this thread" - not, mayhap, in another conversation, someplace else, in an alternate universe.

I assumed he hadn't been lying about it being on the web or that the URL for that website was on the box. I said

A) after searching with several search terms for 'link', 'box', etcetera I saw no evidence of this being repeatedly said. Willy has been kind enough to reference the fact that it was is fact brought up once, by him, in Post #240 - Thank you sir. That said - 1/291 or aprox 0.3436% of posts referenced this fact.

Neither that post nor any other including the post that brought up how it had been repeatedly mentioned, has posited that this fact would make a whit of difference regarding whether they would consider this EULA binding. UCC 2 establishes some things quite clearly, one of which is that contracts between merchants and consumers have specific standards as to what makes it a valid contract.

I've only posted the relevant paragraph, clearly linked twenty or thirty times, so hey, what the heck I'll post the darn thing again, although I'm not entirely sure why I can have four people post about something mentioned once and never used in a cogent argument establishes my incompetence, but the people that haven't read the UCC all the way through after the last twenty posts are considered to be on the ball.

But here we fricking go again!




Once again - you made a sale contract when you bought the box.

*either*
A) The EULA is a modification to a sales contract, in which case it is only enforceable for a consumer if you knew and signed for those terms at the time of the sale.

or
as Willy *says* he accepts, the EULA is a separate contract, in which case the waiver in 2-209 regarding consideration does not apply. In fact, since you're not buying anything, it doesn't even qualify for the easy standards of UCC 2 Uniform Commercial Code-Sales, you're back into full contract law territory.

And for the EULA to be valid as a separate contract, under *either* UCC2 *or* regular contract law, both sides have to receive consideration - They have to get something from it and I have to get something from it.

Now, as an owner of the disk (Not the Intellectual Property of the software, but the legitimate owner of that physical copy) I have the right under U.S. law to use that software for normal use. What the heck I'll post that too:


So, if I own that copy until I sign the EULA, then I have the right to use those programs. Right until the EULA that takes my ownership of those copies away, which it could do as a valid contract.

Except - I have to get something in return for it to be a valid contract - both sides have to get consideration, a 'contract' where only one side gets anything is not actually a contract. So - what do I get from the EULA? The right to copy/install the software? No - I already had that right under § 117 of the copyright act.

The EULA does not give me *anything* in return for the rights it takes away.

So if the EULA is a modification to the sales contract, it fails completely to meet the standards for a consumer, and I have strong reservations regarding whether it would be valid between merchants (Saying you don't own the physical copy of the software is *not* a standard term in EULA's, which would put it out of the realms of even 'between merchants' sales, but that's an entirely different argument.) , but that depends on specific circumstances and the exact terms.

If it's a separate contract, then it fails worse - because I have to actually *get* something out of it for it to qualify.

This has been posted before - the wording is not some terribly esoteric latin derivative going back to Ancient Rome here. Copyright law gives you the right to use that disk.

Contract law has provisions for taking away that right, provided that you were made aware and legally acknowledged those terms when you bought it (if done as a modification to the sales contract), or for exchanging those rights for other consideration (if it's a separate contract).

But neither of those interpretations apply here. As a consumer, I can't agree to terms I haven't had explained to me, as a separate contract, the software company has to give me a pony when I sign for it.

People keep complaining that my posts go on forever - if people actually read through them, I wouldn't have to post the same thing over and over.

Jonnan

Considering there is a separate product for commercial use and he bought the version marketed specifically to the personal use consumers whose existence you deride, yeah, I think he could have been considered a consumer.

And no, I accepted that the EULA is separate from the TOS, not that the EULA is separate from the sale. Let's hear the 7th Circuit's view on that, please:





I'm sorry if the Zeidenberg decision contradicts your reading of the UCC, but it's 12 years old now and was never overturned. Maybe the 7th circuit was just as wrong as the 9th circuit, but most likely the problem lies with you.



That tidbit from the Zeidenberg case explains my opinion of your false merchant/consumer dichotomy exactly. In terms on enforcability, EULAs must be equally legal or equally illegal.

Well, to some extend I agree. I read most of the ongoing discussion and would like to add this much: Copyrightlaw is subject to the respective country. How and to what extend a product is protected by it, depends soley on the law-system of the country you live in. I only may evaluate the aspects of the german law in this case. The EULA, as quoted above, is indeed not part of the contract itself. In germany we split a buyingcontract into two parts. First the part where you oblige yourselfe in taking the good and paying the price and the second where you actually TAKE the good. The EULA would be element of the first part - since the EULA is somewhere stored away on the DVD or as printed flyer in the box, it can't be part of that very contract. Hence the whole EULA issue is - at least in germany - a long shot in regards as a basis for a civil law case.

The initial question of this thread was if cheating is illegal. Form the aspects of civil law it is not - until and unless you breach the contract - which we can, in this case, deny so far. On the other hand CHEATING in a game like WOW states part of the physical elements of fraud, since the account values of the WOW accounts are tremendous (I heard of ppl selling these on the internet for loads of "real" cash). So when you cheat your way up to a higher level hence enhancing the economical value of your account, you are at least in danger of attempting a fraud (for which you actually must try and "cash in" your account).

According to german (and actually international) law the decision of the judge goes against a fundamental law figure - the prohibition on analogies. Cheating is NOT analogue to COPYRIGHT infringement. The consequences of this ruling are as simple as they are dangerous: the undermining of the prohibition on analogies. This is - no matter in which part of the world you live - a significant abridgement of legal certainty.