Comment by DanBlake | Hacker News Reader

Comment by DanBlake | Hacker News Reader

The autodesk case is linked with both MDY vs Blizzard and UMG vs Augusto.

Cliffnotes:

Autodesk case is about this guy, vernor, who went around buying legit copies of autocad at tag sales and the like and reselling them on ebay. The autodesk license says you cant resell it. They sued vernor and lost, now its on appeal.

UMG vs augusto is about how they sent out "promo" CD's that said "not for resale". Augusto did it anyways.

MDY vs Blizzard is about how MDY made cheats for WoW. Blizzards TOS for WoW says that cheats are not allowed. WoW charges xx$ /month and is a continuing service, despite having a initial software.

Anyways.

I think its likely we will see the first sale doctrine applied for both autodesk and UMG. We will get a clear ruling that a EULA can not upset the rights of buying a product. If I buy a Ford Taurus, I can do whatever I want to that car and add any modification I want to it. Turbo chargers or extra wide tires. I can even throw a Ferrari logo on it.

With that fact in mind, I think that the first 2 rulings will be for vernor and augusto.

In regards to MDY- I believe the result will go to Blizzard. WoW users have to continue paying to use WoW and its evident they dont own it, but license it.

The basics of this is :

If it smells like you dont own the software, you likely dont. (ie- paying monthly or a primarily online service)

If it smells like you DO own the software (IE- buying a copy of autodesk which you never have to pay for again and provides free updates (or no updates) then regardless of what the license says, you do own it.

I agree with the concept of your breakdown for own vs. license. However in order for it to be legalized you would need to set the conditions for when a software "smells like you don't own" it. This is inherently large to do and leads to 10s of pages of legalese attempting to describe a simple idea.

I think its simpler than you would assume.

If the product depends on a persistent relationship (ie- a subscription to WoW or even in the case of something like steam- You dont pay anything to continue using it, but the service depends on your continuing relationship) Then I think a EULA is binding- You are actually licensing something- The fact that the service is free isnt a issue.

However, the practice of licensing what should actually be sold will end. If you go to best buy and buy a copy of Tetris, for all intensive purposes that is a sale. There isnt any online environment thats needed. There isnt a subscription to it. Its just a purchase.

Anyways, to answer your question. I think the defining method of what will make something "eula capable" will be if it requires a continuing relationship. In the case of software, it might be simpler to say "Does this software require the internet to work" - If the answer is no, then its most definitely a sale and not a license.

Ugh. I agree with your reasoning, but that seems like it will inevitably lead to companies implementing the kind of DRM nobody wants where the software has to phone home every time it starts up, just so they can enforce their license terms.

But then we have a good argument for a DMCA exemption. If the DRM exists solely to circumvent a federal court ruling and the well-defined first sale doctrine, then it should be easy to get the copyright office to allow an exemption.

Or you could just break the DRM in a country other than the US.

My printer requires me to have a continuing relationship with the manufacturer to get replacement cartridges, is it just licensed? IMO your WOW analogy is specious, the freely provided service is a separate entity to the software product I buy in the shop - I still have the software to use (as much as that is or isn't possible) regardless of whether the company continue to supply their free online services.

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Aside:

>for all intensive purposes

"intents and purposes"

I don't normally complain, but as you're into word definitions in your post it seemed apt.

"My printer requires me to have a continuing relationship with the manufacturer to get replacement cartridges."

I don't think this meets the standard of a continuing relationship. Couldn't you have them refilled at Wal-Green's? Or buy a lifetime supply?

Your analogy has the benefit of not being specious; it's just completely missing the point. Support from your printer manufacturer is an ongoing relationship, but the only thing tying you to them is your desire to overpay for ink. You could easily get ink from other places.

With WoW, how many other vendors are able to continue providing an Azeroth for you to craft your wars?

The software you buy for WoW is clearly marked that it has no functionality outside of online play. It's client software that connects to the WoW "service" on Blizzard "servers." You are paying for the service, since you can download the same client software for free on Blizzard's website. I'm guessing that, like Eve Online, any retail purchase equals the equivalent game time.

The ongoing relationship is only relevant to the extent that mutual agreement must be maintained to keep the relationship alive; the conditions that the parties agree to are terms of service, not a license agreement, and apply to the relationship itself.

Blizzard may be entirely within their rights to suspend your World of Warcraft account if you connect to their servers with a hacked client. But they still wouldn't have any legal right to control what you do with the bits on your own hard drive.

The pro-EULA argument is that they could claim that right either way.

"I can even throw a Ferrari logo on it."

Ford couldn't stop you from doing that, but Ferrari could.

No I think neither can, but both can stop you from selling the result.

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