In his summary ruling on Blizzard's case against World of Warcraft cheat-maker Michael Donnelly (released yesterday), District Court Judge David Campbell has stated that the act of using a bot in violation of a game's license or terms of use qualifies as a copyright violation. Huh?
Just to get it out of the way, I'm as much against cheats as the next guy. As a WoW player in particular, I'm glad to see Blizzard shut down the cheaters and cheat-makers. But this ruling doesn't make much sense to me; it seems like a case of the judge just trying to find a way to cover something which doesn't really cross any real existing laws. Worse, it sets some (arguably) nasty precedent, effectively making EULAs law (any violation is a violation of copyright), rather than simple contracts where the most you can lose is your right to use the software.
Strangely, the judge actually dismissed Blizzard's claims that the cheats violated the DMCA. Given the amount of use the DMCA gets in such cases, you'd think that the ruling would have been the other way around, at least. In any case, it seems the case is now going to trial to decide the DMCA portion for certain.
What do you guys think? Should this ruling stand? Personally, I think that it shouldn't--stripping cheaters of their access to the game and perhaps making a civil claim against the cheat-makers for damaging the game for everyone else is justified, but making any EULA violations illegal, as Judge Campbell (inadvertently or otherwise) has done is going too far.
The problem is that by attempting a legal solution to a technical problem, imo at least, the damage allowing *this* kind of broad enforcement of an EULA is going to cause far more damage than it's worth, because in order for this to be a useful solution, you have to discard immense numbers of consumer protections that were placed *into* contract law originally because it was abused too often over the years.
Willy has been quite explicit that he thinks that simple things like enforcing the (as I read it) simple requirements of requiring the merchant to present the EULA and both they and the consumer sign it is "what I would consider necessary for children and the handicapped, not for legally competent adults", and I get the impression that Bodyless and possibly yourself agree.
For myself - The average income in the United States is ~$30,000, the starting pay for a business lawyer is ~60,000 in business, rising to an average (median) of $120,000 across the industry (per Bureau of Labor Statistics . Contract law is a highly specialized field that rewards having a formal knowledge with four times the average U.S. salary.
So I find it somewhat disingenous to proclaim that restricting the practitioners of contract law to either working with people equally specialized in their field ("Merchant") or to practicing their art with the kind of careful, full disclosure of the sort used when *any* ethical specialist is working with a layman, is somehow treating the layman as if he were handicapped. He's no more handicapped than I would be going into a boxing ring with a professional boxer. Guess what - there are rules that say I can't go into the ring with a professional boxer without specific protections that wouldn't apply to another boxer and the professional boxer is sure as hell not allowed to touch me *outside* the ring, no matter *how* much I may look at first glance like I'm a big boy and can defend myself.
That doesn't mean I'm a wimp, a child, or handicapped - that's simply acknowledgement that there is a qualitative difference between a boxer that makes his living doing that and a guy that repairs computers for a living.
Jonnan
Jonnan - a bit of indirect personal experience, if I may. One of my friends from high school is a lawyer who specializes in debt collection and representing creditors in bankrupcy cases. You would be floored by the percentage of people who use "I signed it, but that doesn't mean I knew what it said" as a defense, and it almost never works. This holds true for utility bills, car loans, morgages, and damn near anything else. Clearly, even having someone hold consumers' hands through a contract, having them initial various paragraphs, etc. does not prevent consumers who either don't read what they sign or simply refuse to comprehend that they can actually be held to an agreement.
The same applies to EULAs. Consumers are given warning that such an agreement is required, with instructions on how to find the full text before purchase. If a consumer is unwilling to seek information they are told is relevant, there is no reason to believe the majority of them will read it even if they are forced to sign it before buying. The consumer protections are ineffective because they can't protect the consumer from himself - no merchant needs to intentionally deceive the consumer who is willing to do the dirty work for them.
For the distiction between merchant and consumer, to be truly an either/or definition, they would need one of two things. Either:
A ) both terms are defined in such a way as to prevent any person from falling into both catergories, and no person can fail to fall into one or the other class.
or
B ) one is defined in relation to the other. "A consumer is defined as any person who does not meet the definition of merchant as defined in...."
Failing either of those, the distinction is not definite. If UCC intended such a distinction, they sould have written it into the law explicitly.h
From post #308 by Jonnan001
Once you've used this argument, you can't honestly expect me to put much effort into finding precedents to prove you wrong - you just bypass them and move on. You've done it before and will certainly do it again.
If I were to correct what you just said to accurately reflect the opinion you've repeatedly expressed, the preceding would read "the damage allowing *any* kind of enforcement of EULAs is going to cause more damage than it's worth..." You have held that EULAs are unenforcable in their entirety, not that this is an unacceptably broad enforcement of an otherwise allowable contract. Please be consistent.
. . . and the problem with the "technical problem" is that it's a virtually unsolvable problem. I've gone through the information theory I know of, and ultimately whichever program gets installed on the user's computer first will always have the upper hand.
If the bot is installed before WoW is installed, there's vitually no way to guaruntee that WoW can detect it's on the same computer as a bot. In addition, even if installed first, the strongest measures against bots would require rootkit-like low level access to the system. WoW would have to take over some of the OS's own functionality - which has proven to be a diasaster for DRM schemes that try to do the same thing.
I wouldn't mind signing the EULA at the store. I already have to sign for my credit card. However:
I'd have to agree with this. Ultimately, it's up to the consumer to know what he's getting himself into, and ultimately it's the consumer's fault for not reading the fine print. No matter how easy it is to read, no matter how big the print is, no matter how many times people are warned, there are always those who don't stop and think before they purchase.
In addition, there always seem to be those who think that this stuff is optional, or who believe that it's okay if they don't get caught and think they won't get caught. There's no shortage of people who just don't care and decide to do their own thing no matter what you put in front of them.
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