55 réponses à ce sujet

[Vaalyah]

My computer is broken and I have to wait for fixing the toolset (which freezes) so I can't try it out now...

[Urk]

You cannot install NWN without agreeing to the EULA. Whether you read it or not you have installed the game with the understanding that your usage of the game is conditional to the acceptance of the terms of that agreement.



I'm not a fan of Atari. Don't much like them at all really, so I don't like taking their side, but in this instance I really don't have any choice. IP is a lot of hard work and it's very expensive to produce. It should be respected.



I find the hypocrisy a little galling that so many people are demanding respect for "their IP" and showing none for Atari's. Legality in Germany, or Auckland, or the Grand Duchy of Fenwick aside when you agree to the terms of a licensing agreement you should respect it. If you don't like the terms of the license you do have the option of refusing it.

[painofdungeoneternal]

Urk wrote...

You cannot install NWN without agreeing to the EULA. Whether you read it or not you have installed the game with the understanding that your usage of the game is conditional to the acceptance of the terms of that agreement.

I'm not a fan of Atari. Don't much like them at all really, so I don't like taking their side, but in this instance I really don't have any choice. IP is a lot of hard work and it's very expensive to produce. It should be respected.

I find the hypocrisy a little galling that so many people are demanding respect for "their IP" and showing none for Atari's. Legality in Germany, or Auckland, or the Grand Duchy of Fenwick aside when you agree to the terms of a licensing agreement you should respect it. If you don't like the terms of the license you do have the option of refusing it.

It's called consumer rights. An EULA is legal verbiage which does not protect IP, it is designed to remove ALL consumer rights. And its something which cannot be used to compromise my rights because there are laws which contradict it's assertions which trump what it says.

I am not disrespecting the Atari IP, this has nothing to do with IP, however i am saying the EULA, and EULA's in general go far beyond what is reasonable or fair, are generally not read by consumers much less understood, and many parts of them are not valid to begin with if for example the person agreeing is under 18 years of age OR they are not legally valid in many states and countries, and cannot go beyond limits set by the law where they are agreed to. But then the companies know that, and despite what it says in the EULA Atari will make sure to pay anyone if they actually use mods in an official game because despite the claims therein, they cannot upend the end users copyright rights that easily.

[dunniteowl]

EULAs are actually fairly common in the computer industry, though their true salient point is this:

"This software is offered as is, and no compensation beyond replacing the original software with another copy of the same type..." and "will not be held liable for any damages..."

That's the real fine point of a EULA, it's the publisher's escape clause. The whole, "...shall not reverse engineer, modify, change or examine the code..." is another point, though that is actually hard to control and even harder to prove and prosecute.



All the rest about what you have to agree to in order to install the game is all really quite moot.

Yes, the reason is this: I don't know about Europe, but in the US there's a set of Consumer Protection Act laws that allow us to use a product and, within a certain time, decide that we don't like it and return it. Now most stores have this 'policy' that they don't accept returns on computer products if the shrink wrap is broken and will not honor anything other than an in-store exchange for the same product.

To install a computer game, they say you have to agree to the EULA, but the EULA, in large part, is not even legally enforceable for what 'painofdungeoneternal' mentions: Consumer Rights. How can you agree to something that is not printed outside the box in full, if the stores have a 'no return, no refund' policy on the product? And vice versa, of course.

The real answer is: You legally cannot.

So, follks, listen up, the EULA covers what we might consider common sense "no no's" for you when you install software, but the restrictions that come with it are, pretty much, legally unenforceable. This also holds true on returns, refunds and exchanges at the store (which is really another issue, though it dovetails with the EULA through presumptions and restrictions tied ONLY to software products.)

You don't have to take them to court, just stand firm, don't back down and demand that your rights as a Consumer be upheld. Yeah, it takes a few extra minutes, sometimes more. Then again, don't most people start such complaints with, "I paid X dollars (or Euros, or whatever) for this and I deserve to be treated properly...?" Well if you paid X monetary units for something, then shouldn't it be worth the time you also invest when it comes to either getting it back or getting some sort of exchange for it too?

I think so.

As to the EULA, though, it violates some very important and seminal Consumer Rights.

Your right to protection and compensation from damage by a product, so the whole, "only the replacement value of the software and not be held liable for other damages" doesn't really legally apply. Also, you have a right to make a backup copy, so any EULA or code introduced into the software that prevents you from doing that, requires that they make available (in reasonable perpetuity, being as how software is digital code and subject to a whole host of corruption/destruction issues out of your hands, which is why you have the legal right to make a backup copy in the first place) a replacement copy well beyond the initial "Defects in Materials and Workmanship" clause of 90 days.

Now, all that said, as to violating copyright, the EULA, again, doesn't do more than state the legally contained obvious. After all the EULA, in this regard is merely doing a CYA (Cover Your A-- erm -- Posterior) to legally be able to say that they did not propagate or encourage, through the use of their software, your potential for mischief in the form of violating copyright laws with whatever they sold you.

The most important thing to remember in the EULA is that it is a contract of "Sight Unseen" and cannnot be signed by both parties. Agreeing to something is all fine and good, but the entire EULA on it's face is not even a legal and binding agreement, because there are no signatures. Any good contract lawyer will tell you that. In the end, the EULA is nothing more than a simple CYA for the company selling the software that serves to protect them without offering you any remedy in return. As such, there can be no signatures placed on it, because the EULA serves as an instrument to negate and violate many rights you have that are upheld by statutes and laws that hold precedence over it. IN such 'contracts' any part that is unenforceable due to laws, statutes and legislation, are null and void.

Just so you know. This is pretty boilerplate basic contract law (unfortunately, while I am not a lawyer, I have had more than my fair share of 'run-in's with enforcing my rights under contract law and have had more than average contact with those statutes.)

And as a last aside, this covers your rights to refunds and exchanges as well. A 'policy' is not enforceable if it serves to violate your consumer rights under the law. Insist on your rights when it comes to protecting your investments and getting your money back when something is not what it advertises itself to be.

best regards,

dunniteowl

[Urk]

painofdungeoneternal wrote...

It's called consumer rights.

That's not what I'm talking about here. I thought I made that clear. I absolutely agree that when you pay money for a product you have the right to a working product that functions as advertised and no EULA can change that. I'm not even talking about legality.

Like dunnite said, and as I mentioned earlier, a EULA is not really a legal document. It's an agreement in good faith. One of the concessions that Atari asks in exchange for the license to use the toolset (which nobody will deny is Atari's IP) is that you surrender your IP rights to content produced using it. This is a fair and reasonable request. It was displayed in full before the game installed. You had the ability to opt out. If you finished installing the game then you have agreed to it. If you ignored it... well... that's a choice too. What I'm saying has nothing to do with legality. I'm saying that if you make a good faith agreement with somebody, you have a responsibility to honor it in good faith.

As I mentioned earlier, in the NWN community we have a tradition of respecting the wishes of custom content providers to not use a submission in a manner inconsistant with their wishes. I do not understand why so many people refuse to extend that respect to Atari.

Modifié par Urk, 27 août 2010 - 03:29 .

[Hellfire_RWS]

All of the forums legal advise aside.



Early in the CEP and after, many members asked if Bioware would ever include that content into an official patch. The response to this was always no, and the reason given was possible legal issues over ownership and copyright. It was stated the risk was to high that someone’s work would be included without compensation.



This above all other things tells me, what I make I own. I have the original files that I created in Max, Photoshop, Zbrush.

Modifié par Hellfire_RWS, 27 août 2010 - 03:46 .

[Vaalyah]

I was in the Sims2 modding community... Same thing with the EULA. Whatever you create with the tools EA games provides to your, is "their" copyright. However, let's face it, I've never heard EA asking someone to give to them the CCs!

CCs are freely available to all the community and this means the game has a longer lifetime, so all to EA advantage. In Sims2 community, some people were selling CCs... after about 3 years, an user contacted EA to ask if that was legal, and EA confirmed it wasn't. No legal actions have been taken against those modders who were selling stuff, however, they have to remove the pay politics for CCs.



...

how it ended? Those guys simply put the payment for entering the site and not for downloading. And yes, there were many users who have paid a lot for those CCs... a really big amount of money, believe me!

So, EULA is legal everywhere... maybe not in China, since they have quite strange copyright laws, but in Europe it is!

[dunniteowl]

I think China's copyright law is: We are the law and we have the right to copy whatever we want.

(and I'm only slightly kidding.)

dno

[painofdungeoneternal]

Urk wrote...

painofdungeoneternal wrote...

It's called consumer rights.

That's not what I'm talking about here. I thought I made that clear. I absolutely agree that when you pay money for a product you have the right to a working product that functions as advertised and no EULA can change that. I'm not even talking about legality.

Like dunnite said, and as I mentioned earlier, a EULA is not really a legal document. It's an agreement in good faith. One of the concessions that Atari asks in exchange for the license to use the toolset (which nobody will deny is Atari's IP) is that you surrender your IP rights to content produced using it. This is a fair and reasonable request. It was displayed in full before the game installed. You had the ability to opt out. If you finished installing the game then you have agreed to it. If you ignored it... well... that's a choice too. What I'm saying has nothing to do with legality. I'm saying that if you make a good faith agreement with somebody, you have a responsibility to honor it in good faith.

As I mentioned earlier, in the NWN community we have a tradition of respecting the wishes of custom content providers to not use a submission in a manner inconsistant with their wishes. I do not understand why so many people refuse to extend that respect to Atari.

An EULA is not an agreement, it's a statement by the publisher, which has code to ensure you read it. The court will just use this as proof that you heard what the publishers position is and cannot plead ignorance.

An EULA cannot affect my rights of copyright, that needs a specific legal agreement AND compensation. I can ignore the EULA in this area because it's not legally binding on me. This does not say i can do what i want with Atari's IP, but it does mean any IP i create is protected since the manner to transfer IP rights to atari requires a better legal document than a EULA.

The ownership of the toolset, models, skeletons, etc which came with the game is Atari's. The ownership of mods to that content is owned by me in so much that they are not really Atari's if my modification is not trivial. So a tint change on a model does not give me copy right as i own just a small portion which anyone really can do, but writing an original story in their application ( toolset ) gives me rights over story that which an EULA cannot take away. Now a released module with that story is partially Atari's and partially mine, they are comingled and Atari can say i cannot sell their modules. But i can take that story and release it and sell it on it's own. If i take a texture from a random "van gogh" painting and put it on a model it makes the IP owner Atari, Me and "Van Gogh*", all of whom have a legitimate claim. ( *van gogh being any random artist on the internet who you happen to grab art from )

Since we both agree this is ok to share is the only reason it can be used, either party can restrict it as well and Atari or anyone else cannot sell it without fairly compensating me. All parties who created said art can choose where and how said content is used. If a lot of people are involved there will be a lot of "van gogh's" and a lot of people involved which complicate things so much that a thing like the CEP could never be released. Nothing can be taken by the publisher without a separate agreement spelling out what rights i am selling and compensation, any rights not specifically named i retain.

A lot of what is done is on the basis of "fan" art, where there are no "damages" since no money is being made, which is in shady ground where a single "cease and desist" can remove the content from the public. Which is why i can make a module based on star trek, star wars, conan, or warhammer. Some of those like star wars are known to stop fans more than others, but others allow it since it helps them market their brand in a cheaper manner and because those legal attacks on your best fans tend to backfire.

But we have some extra permission of doing D&D things like faerun since it's a D&D game. Even then they can restrict me from doing fan art, but the fan art cannot be taken by them from a creator without paying said creator for it, and since it's based on their IP the creator also cannot sell it without permission.

[Urk]

An EULA cannot affect my rights of copyright, that needs a specific legal agreement AND compensation. I can ignore the EULA in this area because it's not legally binding on me.

There you go again. You're going on and on about your legal rights. This is not about the law. At least not as far as I'm concerned. I'm not a lawyer, and I have no reason to believe you're one either. And even if you are it still wouldn't matter to me because I do know enough about the law to know that it's a very poor measure of right and wrong.

This is about showing common courtesy to a member of the NWN commmunity, in this case Atari, by using a piece of intellectual property in a manner consistent with their wishes. 

[Vaalyah]

@painof: also when you work for a company you accept you "loose" your copyright on the intellectual properties you create when you are hired there.

If you install a game, you have to check the option "I've read and subscribe the EULA" so it is legally bonding. Of course people are kind and usually a person doesn't steal credits belonging to others, but actually, once you install the game, you are agreeing that you can't claim money or whatever for the CCs you created with and for the game.

[painofdungeoneternal]

Urk wrote...

An EULA cannot affect my rights of copyright, that needs a specific legal agreement AND compensation. I can ignore the EULA in this area because it's not legally binding on me.

There you go again. You're going on and on about your legal rights. This is not about the law. At least not as far as I'm concerned. I'm not a lawyer, and I have no reason to believe you're one either. And even if you are it still wouldn't matter to me because I do know enough about the law to know that it's a very poor measure of right and wrong.

This is about showing common courtesy to a member of the NWN commmunity, in this case Atari, by using a piece of intellectual property in a manner consistent with their wishes. 

I have no idea what your point is. You have to understand i can say "i don't agree to the EULA", and also "i can follow the law" at the same time and respect the ownership rights of Atari.

The two are not exclusive especially when what is claimed in the EULA is not permitted under the law to begin with. Frankly if you want a legal agreement from me, you need to do more than how EULA's are done, and i have to be able to give input on what i am agreeing to, making sure said agreement does not violate any laws or usurp my rights just because it's more convenient to word it that way, and that agreement should vary depending on local laws which apply where i buy the product.

Atari is not being abused by me, nor is anything i do disrespecting them, even have my name in the manual for the last expansion so i must be helping them somehow. But i follow the actual laws and not some made up boilerplate legalese which attempts to go beyond what contract, state and federal law says you can do.

If you do something illegal, like selling a mod, it's illegal due to copyright and trademarks being violated, and has nothing to do with the EULA. They have a right to sue for damages of any money you made. In my case i have made no money, so no damages and it's a moot issue and everything i do is freely shared.

The problem with the EULA is it's an agreement made by two parties where one is under a big disadvantage. One is a corporation with lawyers and lots of money seeking to protect itself. The other is someone who bought the game with intent to own it and perhaps make mods or other creative things with it. Then they find a agreement which says they can "take it or leave it" after they can no longer return the software. Often these people agreeing are minors, or they are in areas where even having an EULA is illegal, or heavily adjusted by consumer protection laws to prevent abuse by corporations - but to know your rights you need to hire a lawyer which most cannot afford to do. This comes down to an agreement where the consumer transfers all rights to the corporation, even copyright rights to everything made with the toolset in this case, but also the right to own the product?

So basically, i see how we act as being able to be respectful of the devs and the publisher, but in return i expect to be respected by those same folks. I will respect their property, in return respect mine. I use their property commingled with mine, and because of that i can not charge for it, but neither can they charge for things i have done. What is right and wrong is not spelled out in the EULA, it's entirely what the publisher "wishes" things to be, where they own everything and the community nothing, and what is needed is a far more balanced description of what is right and wrong.

[Vaalyah]

painofdungeoneternal wrote...

The problem with the EULA is it's an agreement made by two parties where one is under a big disadvantage. One is a corporation with lawyers and lots of money seeking to protect itself. The other is someone who bought the game with intent to own it and perhaps make mods or other creative things with it. Then they find a agreement which says they can "take it or leave it" after they can no longer return the software.

ehm, even if they're big, bad and full of lawyer and you are small, sweet and shy, fact is, EULA is a contract. and BEFORE installing the game you have to agree to it. If you click on "accept", then EULA has legal value. If you don't agree with it, simply don't install the software.
Right or wrong, these are the facts. For whatever software... there's an user license that is legally accepted worldwide.

However, I repeat, I don't think Atari has interest in using your CCs claiming them as "made by Atari"!

[painofdungeoneternal]

Vaalyah wrote...

@painof: also when you work for a company you accept you "loose" your copyright on the intellectual properties you create when you are hired there.
If you install a game, you have to check the option "I've read and subscribe the EULA" so it is legally bonding. Of course people are kind and usually a person doesn't steal credits belonging to others, but actually, once you install the game, you are agreeing that you can't claim money or whatever for the CCs you created with and for the game.

When working for a company, the company is hiring me to create content. And they are paying me specifically for it. That is a valid way to transfer copyright because the owner is the company itself, with money compensating me for it. This is nothing to do with the EULA which does not have anything like compensation for things i create.

An EULA is not a contract and it's not legally binding. Especially when many details are not valid where i agree to it, if i am of age or not, and the fact i already paid for it. And it's not signed, and every patch they can update the game and change the terms without my knowledge, or i decide to install the game when i am drunk.

You cannot charge for using things derived from the game based on copyright law, those things are partially owned by the publisher. Hence they own them. This is what is being said and it's true with or without the EULA.

According to copyright law in order to lose my intellectual rights, i have to spell out what rights i give up and have to have consideration paid for those rights. An EULA is not a valid way to usurp my rights, they would have to send me a check and i would have to "sign" a real contract spelling each right out. The EULA does not even properly cover all the rights i have and any right not clearly defined is retained by me. Hence i own them as well.

The issue is when there is this joint ownership, you need all parties to agree and all can negotiate payment. The EULA says that Atari permits sharing of content which is what enables the community to use the game. However i have an equal right to anything i make, to restrict or allow it's use. I let anyone use what i do freely, but i would have a right for compensation if i found someone else was charging for work i have done. It's not fully mine, but it's not fully Atari's either.

( Which is why Atari will make sure they pay anyone who contributes things put into the game, they have to, to protect themselves because the EULA is not legally strong enough to be used to just take community content without consent, money being exchanged is what protects them along with a contract. Despite the EULA if your content is used Atari will send you a check and have you sign a contract defining exactly what rights are being purchased, and probably also stating you are the sole creator. )

[Vaalyah]

painofdungeoneternal wrote...

An EULA is not a contract and it's not legally binding. Especially when many details are not valid where i agree to it, if i am of age or not, and the fact i already paid for it. And it's not signed, and every patch they can update the game and change the terms without my knowledge, or i decide to install the game when i am drunk.

I am trying to tell you that if you click on "I accept this terms, so go on and install" you are AGREEING to EULA. It is like a contract that you have signed. And if you have not read it carefully it is your fault. For the law, the ignorance is not an extenuating circumstance (it's a legal article, don't know how it is in English, hope you can understand the meaning from this bad translation). You haven't read it carefully? It's your fault. Blame yourself. You disagree with the terms but still clicked on "I accept"? It is your fault, blame yourself. You were drunk when installed the game? It's your fault, blame yourself.

You killed someone while you're drunk? Sure, and you will likely be sent to jail. You cannot say "It is not my fault if I have killed a person, I was drunk!". That's just an excuse (moreover, it's a pathetic one so, don't try it during a trial! :-D )



However, I repeat, since Atari doesn't seem interested at all in "stealing" (let's say) contents, where is the problem?

In each case, you can just write to Atari and ask them if EULA works like a legal contract, as some did with Sims2 EULA! The company answered without any problem! So, maybe you should have a try!

[painofdungeoneternal]

Note that you say atari is not interested in "stealing" contents. But the reason they are not is because the claims in the EULA that they own anything made in the toolset are far beyond what is easily described as a contract entered to under duress, and the rights it says i give up, my right to copyright is far too broad. This is not legally correct and will not stand up in court. They know just as well as i do that they cannot assert what they forced me to agree to and they have to do a real contract just to protect themselves from my coming after them, that EULA is worthless.

[Lightfoot8]

  I keep hearing arguments based on consumer rights. I paid for it and there for should have the right to use it and own what I make with it. No one here however has paid for the toolset. It came on the disk yes, but so did a PDF reader and direct x. I did not buy this extra content,. I bought the game and the other stuff came on the disk with it for convenience. Any arguments on consumer rights are out the window for I have never seen a copy of the toolset for sale.

[Ingthar]

Urk wrote...
I find the hypocrisy a little galling that so many people are demanding respect for "their IP" and showing none for Atari's. Legality in Germany, or Auckland, or the Grand Duchy of Fenwick aside when you agree to the terms of a licensing agreement you should respect it. If you don't like the terms of the license you do have the option of refusing it.

Don't wrong me! I've never said that I do no respect someone else rights.

Remember, you started your first posting in this thread with.

Urk wrote...
What it boils down to is that everything you do in the toolset, and all files you create in any NWN specific file format, is the property of Atari and can be used for anything... at their discretion.

And I just told you that this is wrong. The EULA does not take away all rights of the author.

Modifié par Ingthar, 28 août 2010 - 06:30 .

[dunniteowl]

End User License Agreement.  Okay?

An agreement, even in writing -- without signatures -- is not legally binding in any state of the union of the USA.  It's like that guy said way back when, "A verbal agreement is only as good as the paper it's written on."  And this is actually going a bit over the edge here, but hey, I'm just as guilty as the next guy so what the heck.

This is just as much about Atari's Rights as it is about copyright law, which has nothing, in all point of fact, to do with the EULA.  And in that point, there is just as much effect and effort placed on Consumer's and End Users' Rights under the law (again, which is not the EULA at all.)

Agreeing to the EULA in order to install the software at all is NOT LEGALLY BINDING according to Consumer Law.  It really is that simple.  You cannot enforce it in any way.  What the EULA is saying is, "You cannot install this software you paid for, which by the way, you don't actually own, you're 'leasing' it from us at our discretion, unless you agree to this EULA, which we have placed into all sorts of things that serve to remove any legal claims you have on your rights as a consumer and protects us every which way from Sunday."

Now, I suppose if I signed such a document, then I'd be screwed, except for any portions I contest and are shown to be in violation of my rights and are unenforceable under contract law and consumer law.  Or federal, state and local statutes.  It's important to really be clear: The EULA has nothing to do with Copyright.  If that were so, we wouldn't have Copyright Law, we'd just have EULAs, right?  Ah, such is not the case.

The reason the EULA doesn't really matter is that all the other legally applicable instruments of law and contract are already clearly spelled out in laws and statutes, which supercede any legal contract -- even were it signed -- as long as the laws enumerate rights the contract attempts to void, or as long as the laws negate any conditions of the contract.  That's why the EULA is pretty much the same thing as saying, "It keeps honest people honest."

Except it doesn't.  Is it honest on the part of a company to tell you that you have to agree with the EULA before you can even install the product only to find out you don't like it?  Or that it doesn't work as advertised?  And according to Consumer Law, is it honest to say, "This product is sold as is and we make no guaranty or warranty of merchantability."  I mean come on, that's essentially telling you, "Hey, we're not saying it works or that it could even be made to work, and you're the one taking a gamble -- good luck with that."

Copyright Law is what serves to protect you, me and the artists (who may have signed away their ownership of copyright to the Publisher by being paid or commisioned for their specifc works) and the publisher.  Violating copyright law is not mitigated, protected or made stronger by the EULA.  It's copyright law that's at work here.  In this case, the EULA is, to that effect, an agreement that you can use the toolset (which is included in the package, so, guess what?  It's part of the software you paid for) and not have your pants sued off by Atari for reusing assets already included in making your story.  They provided the toolset and they expect you to use it, but in accordance with their wishes, which oddly enough, are strictly delineated by Law, including obscenity, pornography and copyright laws.  The EULA only, as I said earlier, is a CYA document that, for all intents and purposes is nothing more than a 'gentleman's agreement' that neither one of you are going to purposely try to hurt the other as long as no laws are being broken.

The EULA is a Non Binding Agreement.  Non Binding means that neither side can use it to enforce their position.

You what?  You peeked at our program code and then used it in something of yours?  You violated the EULA!
Nope, you violated Copyright.

What?  You made a story using Star Wars characters and the DC Comix Universe?  Oh my, you violated the EULA!
Nope.  Copyright Law again.

What?  You made nude models of NPCs from our game (ie: you somehow managed to undress Neeshka, Qara, Sand and Grobnar) and then made a module with those?  You violated EULA!
Nope, once again copyright.  (and possibly, depending on what the characters are doing, obscenity and pornography laws too.)

Nothing in the EULA is enforceable unless it's already covered under existing law.

So, truly, all you really need to know is that, as long as you don't violate copyright law (and others) during the production of a module, or entering assets into the Vault for general consumption in the game, then you'll be okay.

I think, by and large, most people respect the EULA for what it is -- or more than it is -- and this serves to keep Atari (or any other company for that matter) respected.  In fact, I believe that most people are pretty respectful to begin with and as such, paying for the product keeps Atari (et al) pretty happy on the whole.

The reason most forum posts don't harp on the company's rights is because, I think we all know that in most cases, corporate responsibility involves lawyers being told to do whatever they can to ensure that the company's rights are upheld and the consumer's rights are negated as much as they think they can get away with doing.

As most people don't fully know their rights, this usually translates to a very lopsided 'agreement' at gunpoint.  That may be 'legal' as long as you don't fight it, but it's certainly not fair, right or even honest in it's fullest context.  So while I am inclined to respect what I know are Atari's rights with regard to NWN/2, I am dead certain that the things contained in their EULA, to a very large degree, do not serve to protect my rights under law and, as such, make no bones about ensuring that the rest of my fellow Community members know that a EULA is a piece of paper that is not worth the paper it's printed on.

That said, you are still obligated under law to respect the rights of Atari's copyright protections as well as the other way around.  That goes for other companies/persons as well who's copyright you might be violating when using something other than D&D for your NWN2 modules.  More than likely nothing's going to happen, but that doesn't mean you shouldn't be concerned about it or that you could and should just go right ahead and do what you want.

Which, by the way, no one is even remotely suggesting in this thread, so the point of bringing it up earlier I don't get.

best regards,
dunniteowl

[Urk]

Pain, you can't disagree with the EULA and install the game. It's dishonest. If you don't like the terms of the licensing agreement you don't have to play the game, but in order to install the game you must accept the EULA. As for all your talk about laws that's all just blah blah blah. YOU'RE the one talking about laws. I'm talking about an agreement you made with a software developer.

If I lend you my car with the stipulation that you not take it downtown, and you agree, then take the car downtown, you're not a car thief. You haven't broken any laws. But you are a jerk. You have disrespected me and my property. You have broken our agreement.

It's the same thing with a EULA. Just because it's not legally binding doesn't mean you shouldn't respect it's spirit, and the spirit of the EULA says that Atari reserves the right to exersize control over any content created in the toolset. They have made it clear that they are lending you their car on the condition that you don't take it downtown, and you agreed to that stipulation. You're right. If you decide to go cruising downtown there's not much they can do about it except revoke your license to use the toolset, and that won't exactly magically wipe it off your hard drive. But just because you can do a thing it doesn't always follow that you should do a thing.

To claim that you only agreed to the EULA under duress is just plain insulting. If someone pulls a knife on you and demands your wallet, you're under duress. If your boss threatens to fire you if you don't lie to the accountant, you're under durress. If the police threaten to charge you with a crime if you don't testify against your friend you're under duress. If Atari says you have to accept the EULA or you can't a play video game you have the option of turning around and walking away without getting stabbed, fired, or imprisoned. To call that duress is just silly.

Modifié par Urk, 28 août 2010 - 07:27 .

[Ingthar]

Vaalyah wrote...

I am trying to tell you that if you click on "I accept this terms, so go on and install" you are AGREEING to EULA. It is like a contract that you have signed.

As dunniteowl pointed out above, the EULA needs to be presented before buying the game to become effective. So if you buy your game on disk it does not matter if you accept it. It's just not effective. But please note, that most parts of the EULA are covered by law anyway and as such are effective.

This may not be true if you buy the game via digital download and you accept the EULA before payment is made. But the lawyers I know are undecided about that. This is just because you can not put everything you want into an EULA (or AGB).

It's as painofdungeoneternal wrote: An EULA is not an agreement, it's a statement by the publisher.

[painofdungeoneternal]

Urk wrote...

Pain, you can't disagree with the EULA and install the game. It's dishonest. If you don't like the terms of the licensing agreement you don't have to play the game, but in order to install the game you must accept the EULA. As for all your talk about laws that's all just blah blah blah. YOU'RE the one talking about laws. I'm talking about an agreement you made with a software developer.

If I lend you my car with the stipulation that you not take it downtown, and you agree, then take the car downtown, you're not a car thief. You haven't broken any laws. But you are a jerk. You have disrespected me and my property. You have broken our agreement.

It's the same thing with a EULA. Just because it's not legally binding doesn't mean you shouldn't respect it's spirit, and the spirit of the EULA says that Atari reserves the right to exersize control over any content created in the toolset. They have made it clear that they are lending you their car on the condition that you don't take it downtown, and you agreed to that stipulation. You're right. If you decide to go cruising downtown there's not much they can do about it except revoke your license to use the toolset, and that won't exactly magically wipe it off your hard drive. But just because you can do a thing it doesn't always follow that you should do a thing.

To claim that you only agreed to the EULA under duress is just plain insulting. If someone pulls a knife on you and demands your wallet, you're under duress. If your boss threatens to fire you if you don't lie to the accountant, you're under durress. If the police threaten to charge you with a crime if you don't testify against your friend you're under duress. If Atari says you have to accept the EULA or you can't a play video game you have the option of turning around and walking away without getting stabbed, fired, or imprisoned. To call that duress is just silly.

If something is presented as being legal and it's not that is dishonest. When such an agreement attempts to extend legal rights which do not exist, well lawyers do that all the time, which is why they meet in a court and a judge decides which lawyer is right. A EULA is not something that comes from a judge and is fair, it's a one sided statement written by a lawyer to protect the rights of a corporation by limited the rights of their customer.

The term used is "unconscionable" in actual cases. Where the issue was not the EULA but copyright law ( in other words the EULA summarized real laws ) the court will uphold the real laws. But the courts actually have been avoiding the issue for the most part, and most lawyers bringing cases are smart enough not to try to use the EULA like it's a contract.

to quote a legal definition of unconscionable

In contract law an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. An unconscionable contract is one that no person who is mentally competent would enter into and that no fair and honest person would accept. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace.

Contractual provisions that indicate gross one-sidedness in favor of the seller include provisions that limit damages against the seller, limit the rights of the purchaser to seek court relief against the seller, or disclaim a Warranty. State and federal Consumer Protection and Consumer Credit laws were enacted to prevent many of these unconscionable contract provisions from being included in sales contracts.

So i guess i am not a nice person since i don't respect every thing thrown at me. But then not everything is worthy of respect either, to me i think everyone should treat each other fairly and there is nothing fair about these hidden statements or how they dress them up as legally binding, nor do i accept that a corporation can just throw away all my rights after they get my money but before i can actually use said product.

Since i cannot live in the stone age, and most companies just assume they can legislate their own laws via these EULA's and thus sidestepping both legislatures and the courts, i just click the required button, then i have to go find all the checkboxes where i agree to getting spam in my inbox, monthly credit card fees for joining some club, or do some complicated procedure to opt out of something designed so most people don't notice it to begin with. Then i have to call my bank to cancel the fees, and install spam blocking software and reinstall my operating system because they decided it's fair to install a virus rootkit just to make sure i am honest.

So i respect the fact they own the game,and that hasbro owns D&D, however just because they claim ownership of original artwork i create for my module, i do not agree they own them based on a wild claim they expect me to agree to in a small box full of hard to read legalese before playing said game. Anyone is free to use said content i created inside NWN2 games, but they are not free to go out and sell it, put it on some site which requires payment or the like. And of course what i just stated is my position and is the exact same position Atari has because they own many of the models, textures, and programming i use in that module along with my original artwork, which they forbid from being sold and allow to be freely used with the NWN2 game.

Modifié par painofdungeoneternal, 28 août 2010 - 11:54 .

[Urk]

The only person here who seems to think that the EULA is a legal document is you. I tghink it's a safe bet to say that lawyers don't try to present EULA's as contracts because that's not what they are. They are Licensing Agreements.

I'm totally not interested in legal wrangling. Until and unless this stuff gets to court and a precident is set anyone who claims to know the facts is just blowing hot air.

I'm talking about the common courtesy that has been the foundation of this community for almost 10 years. We don't use content in a manner inconsistent with the creators wishes. I don't understand why you don't think Atari is worthy of that same consideration. Everything you're saying here is just rationalization. You're trying to frame Atari as the big bad corporation out to strip you of your IP rights so you can ignore the agreement you accepted in good faith because... well... you want to. You're refusing to respect the EULA because they can't legally MAKE you accept it. Fortunately, while I do take some issue with that it really doesn't matter to either of us personally just so long as we never need to borrow one another's cars.

Modifié par Urk, 28 août 2010 - 01:18 .

[dunniteowl]

Urk, no-one brought this up really until you did, so what's the real issue here? And while you may see it as an agreement, Atari (and any other company putting one in/on their products) don't. They see it as a legally binding contract. In fact, it states it as such. That you cannot install unless you stipulate that you agree, when you've already paid for it and cannot return it (without a whole 'nother level of hassle at the merchant location where purchased) is under duress.

You're effectively told, "You can't do this unless you agree -- and we already got your money, which you can't easily get back." That's effectively duress in my book.

Again, Urk, no-one here is or has indicated that Atari doesn't have the same rights we do, but all that is covered and that part of the "agreement" is easy to respect.

The problem I, painofdungeoneternal and many others see is that it is all coated over with the other crap in the "agreement" that is not legally binding, though treated as if it were. If you're okay with that, great. It doesn't change anything.

No-one here has remotely argued that Atari doesn't have a right to protect it's IP. No-one here has indicated even a little bit that people can't keep agreements (or at least the portions that make sense and are fair -- as well as legally binding) and that doing so is something to be done only when it suits them (other than yourself by implication, that is...) so I don't see where the issue is coming from for you.

All that said, an agreement made by someone you don't know, indicating that you cannot do things to which you are legally entitled, along with other things that you'd probably respect anyway, isn't an agreement made by two willing parties and enforceable after the sale has been made and after you've opened the box and are unable to return the product in a manner consistent with fairness in marketing and merchantability.

Think about it. In your car analogy, the agreement is made up front and no money changes hands at that point. Nor do any car keys until the agreement is made. That's very different from the agreement you're clicking on after purchasing a product that has no agreement stipulated on the outside of the box where anyone who might buy the product can see it, understand it and be aware of it before money changes hands. Is that an honest and fair agreement method?

It doesn't matter if it's legal or respectful once the click to agree button is reached. It's inherently unfair and in that manner, is dishonest to expect or require someone to agree to something before they have a chance to try out what they just spent hard earned monetary units for.



Now all that aside, I will reiterate: Not one person here has said that Atari doesn't have a right to it's IP. Not one person here has indicated that they don't respect that. In fact, the thread opened up with a question of would Atari mind if... and we all said, as long as they are respectful of IP rights, there shouldn't be any problem.

So what I am seeing is an argument that is using hypothetical hyperbole (which is okay to make a point) but that hyperbole seems to also imply that others here who may not completely agree with your position have taken the position indicated in the hyperbole, which is clearly not the case here.

It's important to separate what others are saying, from what the hypothetical claims are that are bieng made in rebuttal.

As an example: were I to ask to borrow your car, and you said, "Don't take it into the city and then it'd be okay." I'd say, "Well, I need to borrow your car to go into the city, so no thanks." But if I rent a car from someone and they say, after I pay, "Oh by the way, you can't take the car into any metropolitan area -- it's there in the contract you're signing now." Is that the same thing? To make a stipulation or an agreement after money has changed hands?

That's where I see the disconnect in your arguments. You and I and everyone here has agreed to abide by the agreements in the EULA. Fine. But, we did so after we paid, after we broke the seal and had to as a condition of installation. That's not honest, it's not fair and it's certainly not really an agreement when the other side treats it as legally binding contractual wording that supports their side only.

What's enforceable is what's already covered under law, so agreements to the side, it's still represented as a legal document, not just a gentleman's agreement to be fair to each other or to use the product in a certain way and all's right with the world.

I, and I am sure all the others here do in fact respect Atari's rights (their actual legal rights according to the laws of the land where applicable) and we respect them most likely irrespective of whether or not we care how deeply we wish to go into legal terrain. This portion of this thread is pretty much totally off topic for the OP anyway, so it's all good and fair to discuss this (I think we're officially allowed to drift to a certain degree) as long as we remain focused and don't drift too far again.

It is important, though, to remember in rebutting someone else's position the difference between you making a claim as hyperbole and in hypothetical situations and that other person to whom you're rebutting didn't in fact make those claims themselves. And that's what I'm seeing here. It seems you're confunding your own statements in hypothetical instances as the position that someone else is actually taking. Such is not the case and that would be well worth keeping in mind.



And if you borrow my car, I only ask that if you damage it, you pay for it, and bring it back with the same amount of fuel in it. The rest is covered under your insurance and the laws of the land. My agreement with you would be, take care of it and pay for damages. Simple.



best regards,

dunniteowl

[Urk]

The whole thread is about "What Can I Do With the Toolset". My bringing this up was an answer to that question, Dun, "You can do anything as long as Atari doesn't care".

I'm sorry, but "sign this or you have to back to the store and deal with the cranky lady at Best Buy" is not an adequate threat of "force or imprisonment" to constitute duress.

Your example of the car rental falls flat. For one, a contract is a legally binding document and a EULA is not. Fair or not if you sign a contract with a stipulation that you cannot take that car into a certain place, say for example you cannot leave the state, you are bound to it no matter how unreasonable it is. As a rule you might want to get into the habit of actually reading contracts before you pay, but even if you don't the rental agency has no basis to keep your money as long as you don't sign. This is not the relationship you have in a EULA. It's not a contract. There are no witnesses and there is no consideration. It is simply the owner of the IP telling you how you may or may not use the product you are licensing.

A EULA is much more like an informal agreement between acquaintances. Even if they are written by lawyers you'll notice that they're always written in "legalese light" so that normal people can read and understand them.

As much as I hate getting sucked into legalese I do feel the need to remind you that you do not own NWN. None of us do. What you paid for wasn't the game. You paid for the license to use it, and part of your license is accepting the terms set forth by the license owner. There are no civil or criminal penalties for breaking a licensing agreement, but you can get your license revoked. Technically Atari/Bio still owns the game you are playing. Most software is distributed in this manner.

Franchise agreements are a much better example. Say you own a franchise restaurant and your License to use the franchise stipulates that your store must be open until 1AM, your bathrooms must be cleaned every 30 minutes, you must use meat from one of two authorized providers, and your trash dumpster must be more than 60 feet from any door. Say you live in a small town and there's no business after 10. You can't just unilaterally change the conditions of your license. But you can close at 10. You can cut your costs by using outside suppliers. You can streamline procedures by not cleaning the bathrooms as often, and you can obey city rules about the distance of the trash from the restaurant instead of the franchise rules. All the franchise can do to you is yank your license.

You're not going to jail and you're not going to get sued, but what you did was still wrong. There's the ethical element I have a problem with. I would not be inclined to do business with that licensee in the future, would you? No he didn't break the law. But I wouldn't do business with him anyway because he can't be trusted to his word.

When you accept a licensing agreement you are agreeing to stipulations on that products use. You are making a promise, and whether you can be held criminally or civilly liable or not I, for one, believe a promise should not be made if you do not intend to keep it. This is where I see a large segment of the community being disrespectful of Atari's IP.

Modifié par Urk, 28 août 2010 - 08:44 .