3140 réponses à ce sujet

[billy the squid]

Alex_SM wrote...

Well, most software EULAs are legally non-binding in lots of countries. The fact that a company writes it doesn't mean it means something in real world.

Er, no, not quite. Such licenses are usually based on the existing case law and statute law. That is why they have legal weight, arguing that a company wrote the contract there for it has no real world enforcement is likely to get you nowhere or slapped with a wasted costs fee.

If the EULA, breaches or looks to have breached national legislation in its terms or the underlying principles of contract law then you have a case which one could bring or mount a defence upon.

Modifié par billy the squid, 12 novembre 2011 - 12:07 .

[Alex_SM]

billy the squid wrote...

Alex_SM wrote...

Well, most software EULAs are legally non-binding in lots of countries. The fact that a company writes it doesn't mean it means something in real world.

Er, no, not quite. Such licenses are usually based on the existing case law and statute law. That is why they have legal weight, arguing that a company wrote the contract there for it has no real world enforcement is likely to get you nowhere or slapped with a wasted costs fee.

If the EULA, breaches or looks to have breached national legislation in its terms or the underlying principles of contract law then you have a case which one could bring or mount a defence upon.

At least here in spain most EULAs are non binding. Nearly everyone makes the user forfeits some right, wichs is something that, in spanish law, makes any contract automatically non-binding. For example in most of them you renounce to go to any trial, and that is something no one can make you legally renounce. Here you can't go against your rights even if you want.


And I'm pretty sure in most EU nations is mostly the same. 


Also, while talking about software, you are forced to pay BEFORE having the chance to read the EULA. I'm pretty sure that invalidates most of the things written there. And still, even if you have the program installed and working in your computer, there's no possible proof that you personally signed it, and I don't think clicking in a box is considered legally binding. 

Also the spanish copyright law allows user to modify software in order to make it work, so it allows user to modify any software (or use any modification) to make it work it without internet. 

Modifié par Alex_SM, 12 novembre 2011 - 12:25 .

[Taciter]

billy the squid wrote...

...In games You are given license to use the IP and software in a manner determined by the licensor or Copyright legislation.

Hmmm... I can see how legislative concesus has been hard to rally - 'renting out' a series of binary one's and zero's seems like a fairly dubious practise to me.

Surely, if a customer purchases a product and refrains from undertaking activities that could prove detrimental to the 'producer's' financial entitlement, then shouldn't the customer be able to do with said 'product' as they so wish?

Modifié par Taciter, 12 novembre 2011 - 12:28 .

[billy the squid]

Alex_SM wrote...

billy the squid wrote...

Alex_SM wrote...

Well, most software EULAs are legally non-binding in lots of countries. The fact that a company writes it doesn't mean it means something in real world.

Er, no, not quite. Such licenses are usually based on the existing case law and statute law. That is why they have legal weight, arguing that a company wrote the contract there for it has no real world enforcement is likely to get you nowhere or slapped with a wasted costs fee.

If the EULA, breaches or looks to have breached national legislation in its terms or the underlying principles of contract law then you have a case which one could bring or mount a defence upon.

At least here in spain most EULAs are non binding. Nearly everyone makes the user forfeits some right, wichs is something that, in spanish law, makes any contract automatically non-binding. For example in most of them you renounce to go to any trial, and that is something no one can make you legally renounce. Here you can't go against your rights even if you want.

Edit:

And I'm pretty sure in most EU nations is mostly the same.

Also, while talking about software, you are forced to pay BEFORE having the chance to read the EULA. I'm pretty sure that invalidates most of the things written there. And still, even if you have the program installed and working in your computer, there's no possible proof that you personally signed it, and I don't think clicking in a box is considered legally binding.

Also the spanish copyright law allows user to modify software in order to make it work, so it allows user to modify any software (or use any modification) to make it work it without internet.

Read the terms very carefully, it prevents class action law suits, not private legal action. The stipulations of the contract demand the use of arbitration before court actions. Most countires, UK and EU, included tend to support such an approach due to the reduced strain on the legal system and the reduced costs. Arbitration will usually be done infront of a QC or judge, if you then win at that level and the term is unenforcable class action law suits may be available as the term is void, if you can prove the damage is significant enough. But, by this point the arbitrator will likely have already awarded you costs and damages, so there is not much point in proceeding to a court action.

I believe a class action lawsuit would be available if the arbitrator determines that the term or contract is fundamentally flawed in principle rather than being based on individual facts relevant to only that paticular case.

Nor does a single term render the entire contract void, only that term remains unenforceable. It is only if the term is absolutely vital to the contract's function that it would render the entire contract void, in other cases is is subject to rules of severability.

Edit:

As to the later parts I've dealt with this earlier in this thread, in quite a bit of detail. I'm not about to repeat it again, but suffice to say no it doesn't, nor is signing a requirement for the contract to be accepted. It can be accepted by actions alone in some circumstances. As to the internet access, we don't have any indication that it will require constant internet connection. In addition the Origin is arguably a seperate software, not part of the IP, so you are modifying the the security software not the IP software, I'd have to look at the specifics of the legislation to determine when and how it can be used.

Modifié par billy the squid, 12 novembre 2011 - 12:53 .

[billy the squid]

Taciter wrote...

billy the squid wrote...

...In games You are given license to use the IP and software in a manner determined by the licensor or Copyright legislation.

Hmmm... I can see how legislative concesus has been hard to rally - 'renting out' a series of binary one's and zero's seems like a fairly dubious practise to me.

Surely, if a customer purchases a product and refrains from undertaking activities that could prove detrimental to the 'producer's' financial entitlement, then shouldn't the customer be able to do with said 'product' as they so wish?

Mmm, problem is that the physical item, the disc and the IP, software, on the disc are two seperate parts. You are given the right to use the IP or licensed by EA to use it. You don't own the IP as such EA may restrict how it is used it's their intellectual property.

It does not however give them free reign to stick in whatever terms they like, such as the ME1 issues with Securom which they were forced to back down on. But, it does give them a lot of control on what terms of the license they impose, when you crack or pirate the game the license is revoked and you are in default breach of copyright legislation, unless one can prove that the terms of the contract itself is void.

[Alex_SM]

billy the squid wrote...

Alex_SM wrote...

billy the squid wrote...

Alex_SM wrote...

Well, most software EULAs are legally non-binding in lots of countries. The fact that a company writes it doesn't mean it means something in real world.

Er, no, not quite. Such licenses are usually based on the existing case law and statute law. That is why they have legal weight, arguing that a company wrote the contract there for it has no real world enforcement is likely to get you nowhere or slapped with a wasted costs fee.

If the EULA, breaches or looks to have breached national legislation in its terms or the underlying principles of contract law then you have a case which one could bring or mount a defence upon.

At least here in spain most EULAs are non binding. Nearly everyone makes the user forfeits some right, wichs is something that, in spanish law, makes any contract automatically non-binding. For example in most of them you renounce to go to any trial, and that is something no one can make you legally renounce. Here you can't go against your rights even if you want.

Read the terms very carefully, it prevents class action law suits, not private legal action. The stipulations of the contract demand the use of arbitration before court actions. Most countires, UK and EU, included tend to support such an approach due to the reduced strain on the legal system and the reduced costs. Arbitration will usually be done infront of a QC or judge, if you then win at that level and the term is unenforcable class action law suits may be available as the term is void, if you can prove the damage is significant enough. But, by this point the arbitrator will likely have already awarded you costs and damages, so there is not much point in proceeding to a court action.

I believe a class action lawsuit would be available if the arbitrator determines that the term or contract is fundamentally flawed in principle rather than being based on individual facts relevant to only that paticular case.

Nor does a single term render the entire contract void, only that term remains unenforceable. It is only if the term is absolutely vital to the contract's function that it would render the entire contract void, in other cases is is subject to rules of severability.

The point is that, as far as I know, here you can't force anyone to go into private legal action. To go into that kind of action both parts must have explicitly written their desire to go into private legal action, and even after that there's the chance to invalidate it if any side claims some irregularity (like having signed without knowing it).

But still, that was just one example. While oppening EULAs there are lots of right forfeit situations. 

Spanish law is (at least on papel) very protective with the "weak side" (aka the side with less money), and always priorizes "public action" over "private action" in every kind of situation. 

Modifié par Alex_SM, 12 novembre 2011 - 12:57 .

[Taciter]

billy the squid wrote...

Mmm, problem is that the physical item, the disc and the IP, software, on the disc are two seperate parts. You are given the right to use the IP or licensed by EA to use it. You don't own the IP as such EA may restrict how it is used it's their intellectual property.

It does not however give them free reign to stick in whatever terms they like, such as the ME1 issues with Securom which they were forced to back down on. But, it does give them a lot of control on what terms of the license they impose, when you crack or pirate the game the license is revoked and you are in default breach of copyright legislation, unless one can prove that the terms of the contract itself is void.

Okay, nice explanation.. so in essence, the medium on which the IP is stored is yours to do with as you please but the IP remains the property of its originator. The only way in which one can legally gain the right to access the IP is by purchasing a licence which in turn dictates the terms of access.

I suppose in many ways it's quite an elegant solution to the issue of digital rights management but I can't help thinking that there must be a better way. Short of renting a hotel room, I don't think I've ever subscribed to the concept of short-term leasing.

Oh well, perhaps some bright spark will come up with a more satisfory solution... in the mean time I'll just rest my hopes on good-will! =P

"Ei incumbit probatio qui"

Modifié par Taciter, 12 novembre 2011 - 01:02 .

[billy the squid]

Alex_SM wrote...

billy the squid wrote...

Read the terms very carefully, it prevents class action law suits, not private legal action. The stipulations of the contract demand the use of arbitration before court actions. Most countires, UK and EU, included tend to support such an approach due to the reduced strain on the legal system and the reduced costs. Arbitration will usually be done infront of a QC or judge, if you then win at that level and the term is unenforcable class action law suits may be available as the term is void, if you can prove the damage is significant enough. But, by this point the arbitrator will likely have already awarded you costs and damages, so there is not much point in proceeding to a court action.

I believe a class action lawsuit would be available if the arbitrator determines that the term or contract is fundamentally flawed in principle rather than being based on individual facts relevant to only that paticular case.

Nor does a single term render the entire contract void, only that term remains unenforceable. It is only if the term is absolutely vital to the contract's function that it would render the entire contract void, in other cases is is subject to rules of severability.

The point is that, as far as I know, here you can't force anyone to go into private legal action. To go into that kind of action both parts must have explicitly written their desire to go into private legal action, and even after that there's the change to invalidate it if any side claims some irregularity.

But still, that was just one example. While oppening EULAs there are lots of right forfeit situations. 

Spanish law is (at least on papel) very protective with the "weak side" (aka the side with less money), and always priorizes "public action" over "private action" in every kind of situation. 

Legal action is still available, but you would do so as an individual not as a class, it would still be undertaken in the public civil court. That would take place after arbitration, they are not saying you can't take legal action, but if there is an arbitration clause it is more than likely that the court will simply order you to undergo arbitration, so as not to clutter up the court system. If that falls through for any of the reasons I stated, then you can still bring a legal action, but your chances are not high if you have already failed in arbitration.

The problem with the contract it is a contract of adhesion, your negotiation in the contract is not a prerequisite for it being valid. It was accepted by your actions alone. Contracts of adhesion are not nice, but accepted for simple expediency in law. Although it does not mean that the terms cant be voided individually or as a group in arbitration and so open the company up to further legal action.

Modifié par billy the squid, 12 novembre 2011 - 01:18 .

[billy the squid]

Taciter wrote...

billy the squid wrote...

Mmm, problem is that the physical item, the disc and the IP, software, on the disc are two seperate parts. You are given the right to use the IP or licensed by EA to use it. You don't own the IP as such EA may restrict how it is used it's their intellectual property.

It does not however give them free reign to stick in whatever terms they like, such as the ME1 issues with Securom which they were forced to back down on. But, it does give them a lot of control on what terms of the license they impose, when you crack or pirate the game the license is revoked and you are in default breach of copyright legislation, unless one can prove that the terms of the contract itself is void.

Okay, nice explanation.. so in essence, the medium on which the IP is stored is yours to do with as you please but the IP remains the property of its originator. The only way in which one can legally gain the right to access the IP is by purchasing a licence which in turn dictates the terms of access.

I suppose in many ways it's quite an elegant solution to the issue of digital rights management but I can't help thinking that there must be a better way. Short of renting a hotel room, I don't think I've ever subscribed to the concept of short-term leasing.

Oh well, perhaps some bright spark will come up with a more satisfory solution... in the mean time I'll just rest my hopes on good-will! =P

"Ei incumbit probatio qui"

Pretty much, as EA holds the copyright for the IP unless you purchase the IP from EA or purchase the license to develop that IP for another company, sorry I can't remember the name, did for Fallout from Bethesda I think.

It's clever how they use the legislation, it's not a great deal for the gamer. Paticularly when they stick in additional DRM some of which goes beyond what was envisioned by copyright legislation.

Modifié par billy the squid, 12 novembre 2011 - 01:31 .

[Reptilian Rob]

Merchant2006 wrote...

Taciter wrote...

lol.. Bogsnot.. your profile pic cracks me up every time I see it! I had no idea Willem Dafoe's eyes were retractible and how did he squeeze the xylophone in his mouth.. sideways?

You and me both. I can't ... *looks at eyes* stop looking at that and just roaring with laughter.

And he did get it right with the post though, I heard about that Battlefield 3 No Origin crack for people who bought the game retail but didn't want to use Origin... mmmh. No doubt someone will do the same for ME3... IF it has Origin... which.... bleh.

Reptilian Rob wrote...

MFW I start up Origin, every, single, day.

http://desmond.image....jpg&res=medium

You know what must be done.

http://desmond.imageshack.us/Himg197/scaled.php?server=197&filename=deadlb.png&res=medium

[Taciter]

billy the squid wrote...

Pretty much, as EA holds the copyright for the IP unless you purchase the IP from EA or purchase the license to develop that IP such a another company, sorry I can't remember the name, did for Fallout from Bethesda I think it was then the right you have can be revoked.

It's clever how they use the legislation, it's not a great deal for the gamer. Paticularly when they stick in additional DRM some of which goes beyond what was envisioned by copyright legislation.

Well Billy, thanks for the crash course in Digital rights litiigation.. you're a good orator and you clearly know your stuff, perhaps if go to jail one day I can call on you for a whitewash! pahaha

As for the issue of Origin, I think you've helped me come to a conclusion and that is that I won't subscribe to it on principle - I'm not going compound the DRM folly by endorsing a precedent that only serves to hurt the community to which I so humbly belong.

Modifié par Taciter, 12 novembre 2011 - 01:33 .

[Taciter]

Hahahaha.. Rob... you win the random storyboard post award of the day! Here, have a cake...

[Alex_SM]

billy the squid wrote...
Legal action is still available, but you would do so as an individual not as a class, it would still be undertaken in the public civil court. That would take place after arbitration, they are not saying you can't take legal action, but if there is an arbitration clause it is more than likely that the court will simply order you to undergo arbitration, so as not to clutter up the court system. If that falls through for any of the reasons I stated, then you can still bring a legal action, but your chances are not high if you have already failed in arbitration.

The point is that, in spanish law, arbitration is not valid unless both parts have explicitly shown their desire to go arbitration. And here no one seems to have a problem with that, our 3 millions of pending causes prove it Lol.

The problem with the contract it is a contract of adhesion, your negotiation in the contract is not a prerequisite for it being valid. It was accepted by your actions alone. Contracts of adhesion are not nice, but accepted for simple expediency in law. Although it does not mean that the terms cant be voided individually or as a group in arbitration and so open the company up to further leagl action.

Spanish arbitration law says:

"...En los contratos de adhesión y en los contratos normalizados, la manifestación de voluntad de someter el contrato a arbitraje deberá hacerse en forma expresa e independiente."

"... In adhesion contracts and standard contracts, the manifestation of willingness to submit the contract to arbitration shall be expressly and independent."

It must be a separate document where both sides show their desire to on arbitration, so a clause inside an EULA is not legit. 

Also adhesion contracts are considered legally borderline. Are tolerated due to practical necessity, but they violate basic rights of spanish legislation and it's usual to see them declared void in every related trial. 

But I think we are quite special. We are the country where everything related to the download or distribution of copyrighted material is legit unless there is money involved. And everything related to drug owning is legit unless a willingness to distribute is proven.

Modifié par Alex_SM, 12 novembre 2011 - 01:50 .

[billy the squid]

Taciter wrote...

billy the squid wrote...

Pretty much, as EA holds the copyright for the IP unless you purchase the IP from EA or purchase the license to develop that IP such a another company, sorry I can't remember the name, did for Fallout from Bethesda I think it was then the right you have can be revoked.

It's clever how they use the legislation, it's not a great deal for the gamer. Paticularly when they stick in additional DRM some of which goes beyond what was envisioned by copyright legislation.

Well Billy, thaks for the crash course in Digital rights litiigation.. you're a good orator and you clearly know your stuff, perhaps if go to jail one day I can call on you for a whitewash! pahaha

As for the issue of Origin, I think you've helped me come to a conclusion and that is that I won't subscribe to it on principle - I'm not going compound the DRM folly by endorsing a precedent that only serves to hurt the community to which I so humbly belong.

Haha, thanks. I'm a bit rusty on my law and I don't really want to trawl through all my notes and statute books and I don't think anyone would want to read pages of my writing detailing legal maxim and case summary, best way to kill a thread.

The Origin thing, I'm unsure on. In principle I don't mind EA setting up a digital distribution system, but some parts of it are a little iffy and it is more intrusive than I feel is required to carry out its service. I'll have to see what changes EA makes or how it is implemented in ME3, or if things like Sandboxie work.

[billy the squid]

Alex_SM wrote...

billy the squid wrote...
Legal action is still available, but you would do so as an individual not as a class, it would still be undertaken in the public civil court. That would take place after arbitration, they are not saying you can't take legal action, but if there is an arbitration clause it is more than likely that the court will simply order you to undergo arbitration, so as not to clutter up the court system. If that falls through for any of the reasons I stated, then you can still bring a legal action, but your chances are not high if you have already failed in arbitration.

The point is that, in spanish law, arbitration is not valid unless both parts have explicitly shown their desire to go arbitration. And here no one seems to have a problem with that, our 3 millions of pending causes prove it Lol.

The problem with the contract it is a contract of adhesion, your negotiation in the contract is not a prerequisite for it being valid. It was accepted by your actions alone. Contracts of adhesion are not nice, but accepted for simple expediency in law. Although it does not mean that the terms cant be voided individually or as a group in arbitration and so open the company up to further leagl action.

Spanish arbitration law says:

"...En los contratos de adhesión y en los contratos normalizados, la manifestación de voluntad de someter el contrato a arbitraje deberá hacerse en forma expresa e independiente."

"... In adhesion contracts and standard contracts, the manifestation of willingness to submit the contract to arbitration shall be expressly and independent."

It must be a separate document where both sides show their desire to on arbitration, so a clause inside an EULA is not legit. 

Also adhesion contracts are considered legally borderline. Are tolerated due to practical facts, but they violate basic rights and it's usual to see them declared void in every related trial. 

Pending does not imply success, but you're legal system seems to more lenient in the interpretation of legislation and accepting case validity.

Thanks for the translation I'm forgeting my Spanish a little, but the willingness to submit to arbitration seems to refer to one's actions in how it is accepted, not the contract itself, such as not being influenced in anyway, by duress and the acceptance being explicit Ie: agreement upon accepting the contract upon clicking okay on installation. Not by some vague act which implied acceptance.

In addition, It's not logical to create a new contract which will simply reflect the same terms as the first making it redundant, or if the terms are different it creates the aditional problem of ambiguity, a big no, no in contract law. Which contract contains the terms which the parties abide by, they are both seperate contracts, which one takes precident, does one contract render the other void. There is a whole list of issues which arise from creating 2 contracts which stated different terms.

Whilst contracts of adhesion tend to push the principles of contract law, it is the individual drafter of the contract which causes the terms to be void, not the nature of the contract being one of adhesion.

Modifié par billy the squid, 12 novembre 2011 - 02:10 .

[Reptilian Rob]

Taciter wrote...

Hahahaha.. Rob... you win the random storyboard post award of the day! Here, have a cake...

Mmmmmmm, cake. 

[Alex_SM]

Yeah, as I said before, our legal system tends to be quite protective to people's rights (theoretically).

The nature of the contract here is used (by law) to force an interpretation which benefits the consumer rather than the contractor. And there's a lot of public vigilance over this kind of contracts.

Regarding arbitration: Usually, when both sides agree to go on arbitration, they make a separate contract where they sign just the arbitration. That's what banks tend to do, a second contract with just one or two paragraphs just about arbitration (and this part is still easily invalidated if later the consumer explicitly shows his nonconformity).

Anyway, we are going quite offtopic.

Modifié par Alex_SM, 12 novembre 2011 - 02:25 .

[Shermos]

"Yeah, as I said before, our legal system tends to be quite protective to people's rights (on paper)."

HA! At least you added on paper at the end. Go to Wikipedia and type in "Japanese Americans 1942" and you can read all about your precious bloody rights. What Americans and the people of any country with a so called bill of rights have are temporary privileges, nothing more.

--------

It's funny that people are still complaining that Origin will be required to play the game when it has been confirmed from Bioware that an internet connection will only be required to activate the game and verify the files.

[Alex_SM]

Shermos wrote...

"Yeah, as I said before, our legal system tends to be quite protective to people's rights (on paper)."

HA! At least you added on paper at the end. Go to Wikipedia and type in "Japanese Americans 1942" and you can read all about your precious bloody rights. What Americans and the people of any country with a so called bill of rights have are temporary privileges, nothing more.
 

I was talking about Spain. 

[xCirdanx]

Shermos wrote...
It's funny that people are still complaining that Origin will be required to play the game when it has been confirmed from Bioware that an internet connection will only be required to activate the game and verify the files.

Which means a one time activation.

Does that mean that a software like Origin will NOT be required? No.

The thing you get mixed up is the word "only". They said it will need one time internet activation. Thats it. There was no "only" or "no/yes to origin".

[Shermos]

You have to interpet pretty hard to think Origin will be required to play it.

http://biowarefans.c...-if-you-please/

http://blog.bioware....-jesse-houston/

"Will ME3 require an internet connection for each launching of the SP game, or will it retain ME2′s single verification method?

Mass Effect 3 PC will require the internet connection when you
initially launch and authorize it but then you will no longer require
the connection."

In other words, no, Origin will not be required except for the initial activation. I'm tired of disingenuous assertions.

Modifié par Shermos, 12 novembre 2011 - 02:59 .

[Alex_SM]

It's in the Mass Effect 3 EULA (it's been already published in the EA web). 

The paragraph about Origin is mostly the same as in Battlefield 3. 

Modifié par Alex_SM, 12 novembre 2011 - 02:58 .

[Shermos]

See above please.

[Alex_SM]

Shermos wrote...

See above please.

Mass Effect 3 EULA: http://eacom.s3.amaz....5.11 FINAL.pdf

In page 2 explicitly says the installation of the Origin client is requiered. 

[xCirdanx]

Shermos wrote...

See above please.

I applaud your for your research, though this isn´t saying anything, this is pure speculation on the side of the writers, or to copy them:

"Mass Effect 3 may require the Origin Client to activate, but probably not exclusive to the store."

and "With a little over five months until its release, it’s a bit premature to know the exacts of the DRM in this game. However, gleaming through some internet sources gives us a fair idea of what may come." Fair idea..uhu..right..

This sums it up. Think about it, DRM changes in before the launch are nothing new, so excuse me if i wait for an official statement rather then speculation based on an outdated (for my country at last) EULA.

Edit: or an interview that may not represent EA.^^

Modifié par xCirdanx, 12 novembre 2011 - 03:11 .