U.S. Govt joins piracy fight

[Shaggy]

Originally Posted by thename

Once again, we agree fundamentally but differ in the belief that the laws are currently structured as such e.g., EULA violation leading to copyright infringement. I don't think it's a huge leap to read the Kindle ToS (stating that you only own a license to the work, not the work itself) in light of that decision to reach that conclusion.

If you read the details of that case, the software was specifically licensed for a limited time (it's talking about signing up for the Blizzard WoW service), and not sold. The basis for the ruling that they violated copyright is that they did not own the software. That is different from eBooks.

The way that Blizzard sells their service in order for that ruling to apply is fundamentally different from how retailers sell eBooks.

[DawnFalcon]

Yes, but. Although you might be authorised to do it under fair usage rights, per Blizzard vs MDY Industries, you are still be guilty of copyright infringement for breaking the EULA/ToS.

Shaggy - That's non-substantive in light of the ruling's language. ANY EULA/ToS violation can be held under the resolution of that case to be a copyright violation

[thename]

Originally Posted by Shaggy

If you read the details of that case, the software was specifically licensed for a limited time (it's talking about signing up for the Blizzard WoW service), and not sold. The basis for the ruling that they violated copyright is that they did not own the software. That is different from eBooks.

The way that Blizzard sells their service in order for that ruling to apply is fundamentally different from how retailers sell eBooks.

I look forward to your narrow reading to be borne out in future, virtually inevitable cases. The pessimist in me thinks you are far too optimistic in your understanding of the courts' ability to make such distinctions.

Lemon out!

[Shaggy]

Originally Posted by DawnFalcon

Yes, but. Although you might be authorised to do it under fair usage rights, per Blizzard vs MDY Industries, you are still be guilty of copyright infringement for breaking the EULA/ToS.

No, what they're saying is that since you don't own the software, fair use doesn't apply. Not being the owner is a requirement in order for this ruling to have any meaning, that was the whole basis for it.

[Shaggy]

Originally Posted by thename

I look forward to your narrow reading to be borne out in future

Narrow reading? The court specifically stated that Section 117 didn't apply because they weren't the owner.

[DawnFalcon]

I'm going to suggest you re-read the actual ruling and much of the commentary around it. ANY EULA. It's quite clear. (And is going to end up in the supreme court, I'm sure, sooner or later)

What you said was PK's argument. The Judge ignored it and ruled broadly.

[thename]

Originally Posted by Shaggy

Narrow reading? The court specifically stated that Section 117 didn't apply because they weren't the owner.

Yes, "narrow reading" because I believe you're neglecting your de facto lack of ownership over just about anything you've ever purchased in digital form. My specific example (recall I compared it to the Kindle's ToS) relies on the following:

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.

You have a license to the book. No more.

For serious now, I'll leave this in the capable hands of others.

[Shaggy]

Originally Posted by DawnFalcon

I'm going to suggest you re-read the actual ruling and much of the commentary around it. ANY EULA. It's quite clear. (And is going to end up in the supreme court, I'm sure, sooner or later)

What you said was PK's argument. The Judge ignored it and ruled broadly.

PK's argument was that the defendant was the owner and the judge didn't agree, that's not what I'm talking about.

[Shaggy]

Originally Posted by thename

Yes, "narrow reading" because I believe you're neglecting your de facto lack of ownership over just about anything you've ever purchased in digital form.

This has already been covered in the US (and many discussions on here). Unless there is an expectation that the content needs to be returned, or there are time limitations, up front, then it is a sale not a license (regardless of what the ToS says). Blizzard does this, eBook retailers do not.

You have a license to the book. No more.

According to Amazon, but not according to the courts on similar cases.

[DawnFalcon]

Originally Posted by Shaggy

PK's argument was that the defendant was the owner and the judge didn't agree, that's not what I'm talking about.

But it is directly relevant. Under the Judge's ruling, if it's their IP and your break their ToS/EULA, regardless of "ownership", you've committed copyright infringement.

"an unauthorized reproduction of a copyrighted software program in the computer user’s Random Access Memory "

That's ALL it takes (and their contention was that breaking the EULA/ToS made it unauthorised)

Blizzard asked for (again) and got an amazingly sweeping motion!

[vaughnmr]

Originally Posted by Daithi

Don't poke fun at midgets, and the quoting system works just fine.

That makes two different people who have made quotes from me that I haven't made! What is going on with this board? The other said he made a mistake by not erasing my name, what did you do?

[Shaggy]

Originally Posted by DawnFalcon

I'm going to suggest you re-read the actual ruling and much of the commentary around it. ANY EULA. It's quite clear. (And is going to end up in the supreme court, I'm sure, sooner or later)

I have read the ruling. What is clear is that the judge specifically found in this case that the user is licensing the software and does not own it. The reason for this is that Blizzard makes it clear that this is a "limited" license and can be terminated.

That is the general test that has stood up in the courts before with regards to the license vs sale question. If the retailer makes it clear that the transfer of rights can be terminated or creates the expectation that the product will be returned, then it is a license.

Blizzard operates under this model. Therefore WoW users do not own the software, they only license it, therefore Section 117 does not apply.

It has yet to be tried in courts, but it is pretty clear that eBook retailers do not operate under this model. I have never seen one state up front that you only purchase the eBook for a limited time, or that the retailer will terminate your access.

[Shaggy]

Originally Posted by DawnFalcon

But it is directly relevant. Under the Judge's ruling, if it's their IP and your break their ToS/EULA, regardless of "ownership", you've committed copyright infringement.

No, ownership is directly relevant.

This is from the judges ruling:

C. Does 17 U.S.C. § 117 Require a Finding of Non-infringement?
Section 117 permits the “owner” of a copy of a computer program to copy the program to RAM if the copy is created as an essential step in using the program.

Under the two-part test for ownership in Wall Data, the transactions between Blizzard and persons who acquire copies of its game client software are licenses, not sales.

The Court concludes, therefore, that users of WoW, including those who use Glider, are licensees of the copies of the game client software and are not entitled to the section 117 defense.

Ownership is critical to the ruling.

[DawnFalcon]

Okay, I can believe random person on forum or I can believe the multiple lawyers who discussed this topic in-detail on their blogs? Sorry, you're not really convincing me of anything except your will to argue.

If you look at the actual rulings involved in the argument, under them you do not "own" any computer file on which IP is present as long as there is any form of secondary licence such as a liscence agreement, ToS or EULA. You are merely licensing it with conditions - this also follows from Blizzard vs BNetD...

[thename]

Sigh, back in.

Originally Posted by Shaggy

It has yet to be tried in courts, but it is pretty clear that eBook retailers do not operate under this model. I have never seen one state up front that you only purchase the eBook for a limited time, or that the retailer will terminate your access.

I think your "time" constraint on the license is (again!?) too narrow a reading of that judgment and your assumption that most ebooks are sold and not licensed is--I think--misinformed.

Sony Reader:

You understand and acknowledge that in all circumstances your rights with respect to Content will be limited by copyright law and by these Terms of Service.
...
These Terms of Service shall remain in effect until terminated as provided herein. These Terms of Service and your right to use the Service is subject to immediate termination, without notice, (a) if you breach (or we reasonably suspect that you have breached) any provision of these Terms of Service, or (b) upon our discontinuation of our dissemination or support of the Service.

Kindle:

Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.
...
Your rights under this Agreement will automatically terminate without notice from Amazon if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Software and Amazon may immediately revoke your access to the Service or to Digital Content without notice to you and without refund of any fees.

Fictionwise:

You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
...
By downloading Fictionwise eBooks, the User hereby acknowledges and agrees to these terms.

What you have--in general--are explicitly limited licenses to use a digital product that terminate upon violation of the terms of service/EULA. Hence the vast majority of ebooks have such clauses and are liable to fit even your reading of the judgment.