U.S. Govt joins piracy fight

[DawnFalcon]

Originally Posted by Shaggy

Nope.

Well, I hope you don't get burned for your lack of caution.

(And "fair use" was critical, sigh)

[Elfwreck]

Originally Posted by DawnFalcon

...And "ownership" as a concept is only present if there are NO other agreements between the parties, post-sale, otherwise it's licensed. And yes, it does make section 117 more or less worthless. Welcome to overly broad American court rulings.

No, ownership exists if the product containing IP is sold, rather than licensed. The difference between a "sale" and a "license" was established in Vernor v Autodesk--and if the software creator calls it a "license" and attaches a EULA, that's irrelevant if it's sold. You can't tell a buyer how they may use their purchases; you *can* tell a licensee how to use their licensed product.

You can't put a sticker inside a book that says "this book is licensed, not sold, and may not be resold without written permission from [publisher]" and expect it to hold up in court.

However, if the book is licensed for two weeks' reading (i.e. borrowed from a library), it can have terms that say "this book may not be loaned or sold to other people." And while that won't physically prevent it from being handed around, it will mean that the original borrower is liable for all damages done to the book, and potentially any criminal acts committed with it.

It may have ruled differently in the past, but that is clearly not how it has ruled in this or other recent cases. Also, in at least two of the other cases you're talking about a narrow view which only applies to physical items with "incidental" software, while the others dealt with shrinkwrap (PRE-sale) licences, not POST-sale licences.

There's no such thing as a post-sale "license." Sold goods don't have usage licenses, only potential contracts with the seller in order to continue a business relationship. (I.e. violation of Amazon's TOS may lose you online archives of your ebooks, but it can't lose you the right to read them on your Kindle or home computer.)

[Shaggy]

Originally Posted by DawnFalcon

Well, I hope you don't get burned for your lack of caution.

"Nope" meant those are not the cases I'm thinking of. I'll try to find links later.

[Shaggy]

Originally Posted by DawnFalcon

...And "ownership" as a concept is only present if there are NO other agreements between the parties, post-sale, otherwise it's licensed. And yes, it does make section 117 more or less worthless. Welcome to overly broad American court rulings.

I don't know about the UK, but that is false in the US. See Elfwrecks post for a better explanation of it.

[thename]

Originally Posted by Shaggy

Looks to me like this case was about reverse engineering software and DMCA circumvention tools. They probably waived the argument about "fair use" because it didn't really have anything to do with the case. The ruling does talk about Section 117, but says that it doesn't apply because of the nature of the use (reverse engineering). I don't see where the question of ownership vs license, or whether EULA trumps fair use had anything to do with the ruling.

which is important because

No, if you break the Kindle's ToS then it is a contract dispute between you and Amazon. If copyright says what you did is fair use, but the ToS says you can't do it, then you're not violating copyright law. That is not an example of copyright infringement.

So your argument is that ownership confers rights exceeding those of a licensee unless violating the terms of the license revokes your ownership in which case your rights are limited to those described in the license. I'll quit trying to find a logical train in your arguments. On a related note, if I understood your argument your argument would totally be correctly understood.

It's safe to say that you disagree with our (and the EFF's) reading of decisions which we perceive to have the effect of stripping consumers' rights and that we're all on great, legally sound footing when it comes to our digital devices. I feel so much better!

Since this dead horse flogging is pointless I'm officially out. I'll send the EFF a nice little email explaining they can rest easy re: DRM/DMCA/eBooks. They're gonna be thrilled!

[DawnFalcon]

Originally Posted by Elfwreck

No, ownership exists if the product containing IP is sold, rather than licensed.

You're talking about pre-sale licensing, namely shrinkwrap. That's an entirely different issue.

If the forum EULA says "no offensive usernames", and you create a username which is, say, "Toss4er", then you've by Blizzard vs MDY Industries just committed a copyright violation (rather than a licence one).

There's no such thing as a post-sale "license." Sold goods don't have usage licenses

Okay, so you're saying you can play WoW without agreeing to the post-sale licences? Hmm...court says NO. You can do things to the data on the disk IF you don't agree to the post-sale licences allowing you to access WoW-the-game: this is NOT because it's online and subscription-based, but because you agreed to the terms.

To be clear: If you run WoW, even so far as the login screen (after the agreements), and do something to break the EULA/ToS (like reverse engineering) then by the court's ruling you're guilty of a copyright infringement - no subscription to WoW required.

You DID read those nice pop-up messages some websites give you when you go to download files from them, right?

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[Elfwreck]

Originally Posted by DawnFalcon

To be clear: If you run WoW, even so far as the login screen (after the agreements), and do something to break the EULA/ToS (like reverse engineering) then by the court's ruling you're guilty of a copyright infringement - no subscription to WoW required.

If you run WoW, you're in a contractual agreement with WoW's host company. Your use of the software may be licensed, rather than purchased. Your use of your disc was a purchase; you can copy it onto your home computer, make a backup, sell the CD, and so on. However, connecting to *their* servers with the software may involve a license arrangement, and any use of the software that involves a connection to their servers is separate from your rights as the owner of the disc.

You're talking about pre-sale licensing, namely shrinkwrap. That's an entirely different issue.

There is no such thing as post-sale licensing. There are pre-sale agreements, which have had erratic support in the courts, and continued licensing agreements, and other contracts. If you are a licensed user, rather than buyer/owner of a piece of software, you can be guilty of copyright infringement for copying it in a way the actual owner doesn't permit. A fair-use right to format shift doesn't apply because first-sale rights haven't kicked in.

Amazon's EULA can't prevent used Kindles from being sold with the books already on them, because those books were sold, not licensed; it doesn't matter what Amazon says about them, because the terms of money-exchanged-for-book-access matches the description of a sale, not a license.

In the WoW case, the description of the transaction was a license, not a sale. In license situations, the EULA can forbid fair use; in a sale, it can't.

[DawnFalcon]

Eh? No, contract is another area of law entirely, and as I said you don't need to enter into a contract with Blizzard to be subject to their licence agreement - you simply have to click through their licence! (Which does not require a subscription!)

Even the Judge in Blizzard vs MDY industries quite clearly stated that if you hadn't clicked there, you were free to exercise all your rights such as reverse engineering. Your rights CHANGE the moment you click through, to take away rights you once had and to make them not only a breach of licence, but copyright infringement as well.

Consider, again, a forum click-through agreement. By the court's logic, break it and you are clearly committing a copyright offence against the site!

Incidentally - By using the Kindle's 3G or using Amazon's website, you are accepting a bunch of agreements Amazon put onto you, including to not resell any books on your Kindle. It's doesn't matter per this judgement that they were sold: you agreed to a EULA and ToS, your rights are grass, and breach is a copyright offence.

[thename]

Wow. I lied. I'm still here.

Originally Posted by Elfwreck

Amazon's EULA can't prevent used Kindles from being sold with the books already on them, because those books were sold, not licensed; it doesn't matter what Amazon says about them, because the terms of money-exchanged-for-book-access matches the description of a sale, not a license.

I think this is where we all disagree. A few of us have developed this theory that despite how the seller describes the product we decide it doesn't match a definition. Others (such as this article) say they're licensed because that's what you agree to when you give money to Amazon.

So, in the courts we'd have Amazon's explicit text:

Digital Content will be deemed licensed to you by Amazon under this Agreement ... Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content.

versus your application of a statute that may supersede that text by describing the transaction in a way that makes the contractual agreement null and void.

We'll hope they ignore that your giving Amazon money for a book that resides on their servers and is simply linked to your account to be downloaded to licensed devices seems (each time signaling your agreement to their license terms) almost exactly like the WoW connection situation (substitute "Kindle" for "disk" in your text and we're all talking about the same thing). But of course they will because we've seen it demonstrated the two are totally different.

[Shaggy]

Originally Posted by thename

So your argument is that ownership confers rights exceeding those of a licensee unless violating the terms of the license revokes your ownership in which case your rights are limited to those described in the license.

I have no idea what you're talking about. My argument is that the transfer of rights is either as a sale or as a license, one or the other. You can't have it both ways. If it is a sale, then copyright law grants the owner rights that a ToS can't take away. If you are the owner, then the seller can not take away your fair use, first sale, etc.

The Blizzard vs MDY case established that it was a license, not a sale. Therefore Secion 117 of Copyright didn't apply and they were bound by the terms in the EULA.

Other cases, with different circumstances, found that it was a sale, and Copyright law trumped any claims to the contrary in the EULA.

You seem to think those two examples are contradictions, when they are not. The critical difference is in ownership vs license. I think the piece your missing is that just because the retailer/seller claims it's a license in a ToS or EULA, does not make it true. What matters is how the IP is sold and what expectations the buyer has based on that transaction.

A company can not make you think you are buying something, and then try to claim that it was only a license. Courts have already shot that down.

It's safe to say that you disagree with our ... reading of decisions which we perceive to have the effect of stripping consumers' rights and that we're all on great, legally sound footing when it comes to our digital devices. I feel so much better!

I never said anything of the kind. I absolutely agree that consumer's are loosing a lot of their rights. But lets not make it worse by granting the content industry victories that don't exist by spreading misinformation.

[Shaggy]

Originally Posted by DawnFalcon

You're talking about pre-sale licensing, namely shrinkwrap. That's an entirely different issue.

Shrinkwrap is a post-sale license.

If the forum EULA says "no offensive usernames", and you create a username which is, say, "Toss4er", then you've by Blizzard vs MDY Industries just committed a copyright violation (rather than a licence one).

How would that have anything to do with copyright?

[Shaggy]

Originally Posted by DawnFalcon

Eh? No, contract is another area of law entirely, and as I said you don't need to enter into a contract with Blizzard to be subject to their licence agreement - you simply have to click through their licence! (Which does not require a subscription!)

A license agreement is a contract.

Your rights CHANGE the moment you click through, to take away rights you once had and to make them not only a breach of licence, but copyright infringement as well.

Yet again, only if you are not the owner.

Consider, again, a forum click-through agreement. By the court's logic, break it and you are clearly committing a copyright offence against the site!

Which is nonsense, and has nothing to do with copyright infringement.

Incidentally - By using the Kindle's 3G or using Amazon's website, you are accepting a bunch of agreements Amazon put onto you, including to not resell any books on your Kindle. It's doesn't matter per this judgement that they were sold: you agreed to a EULA and ToS, your rights are grass, and breach is a copyright offence.

You are clearly having trouble understanding the difference between how EULAs and copyright effect you depending on whether you are an owner or a licenser. The two situations are not the same. The fact that Amazon makes you agree to not resell any books is irrelevant if you are the owner. Amazon can not take away an owner's right of first sale. They can take away a licenser's right of first sale.

[Shaggy]

Originally Posted by thename

So, in the courts we'd have Amazon's explicit text:

Actually what the courts have said is that the fine print in a license agreement doesn't matter. Their shop can not say that you are buying an eBook, and then later claim that it was really only a license.

Read the Autodesk case, it will explain the difference.

[DawnFalcon]

Originally Posted by Shaggy

A license agreement is a contract.

Er...no. Gifis' "Law Dictionary, 2nd Edition":

"LICENSE: A right granted which gives one permission to do something which he could not legally do absent such permission; 'leave to do a thing which the LICENSOR [the party granting the license] could prevent.'"

"CONTRACT: A promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty"

A licence is one-way, a contract is two-way. Sorry, but this is basic law and if you really don't understand this then the conversation's pointless :/

(Again; You click through the Blizzard agreements and have agreed to their licence. From this, no contract exists. You can establish a contract by taking out a subscription, but that is not required to establish your agreement to the licence!)

And Shaggy, I agree the forum example is nonsense, but it's nonsense which in America could be upheld due to the reasoning of the judge in Blizzard vs MDY Industries! You are granted a licence to post on a forum when you agree to the click through when you register...

And the entire point is that ANY violation of a EULA or ToS can invalidate your licence: Blizzard claimed, and the Judge supported, the claim that this is copyright infringement as well as breach of license!