-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by thebigbossnahhh
Does this Programme try to access your Internet Connection for Spying purposes?
Looking at the marketing blurb on the SecuRom site this software comes with a number of different options.
The basic SecuCD-R and Electronic CD-Key encryption options seem to have no need to access the internet at all. They claim to be totally self-sufficient in the way they operate.
However, if you look here you will see that SecuRom are offering a number of additional (value-added) options to the basic system. http://www.securom.com/solution_market.asp
The most worrying of which is n-cd. n-cd is blatantly a spyware option, Securom actually highlight the fact that it can be used to 'Collect valuable customer data for 1 : 1 marketing activities' that means it must be monitoring your usage of your PC and reporting this information back to its owner.
Another optional feature will be the ability to force the user to access specific websites of the owners chioce automatically when the CD is placed in the drive. The selling point here being that the customer can also be prevented from accessing certain websites unless the CD is in the drive, but as the trigger is an executable, it also has the ability to access the internet and open the website for you. The potential commercial value of this is obvious and would be one stage better than the annoying pop-up problem we currently have to endure thanks to the desires of commercial marketing.
It also worth noting that not only are SecuRom distributing this program as a .EXE file, (Which is something we are all told never to download onto our PC's) they are also selling SecuRom toolkits to allow their customers to produce there own encrypted .EXE files for distribution by them. The only service SecuRom offer in this case is CD burning and distribution.
The implications of this would seem obvious. If a customer can produce their own personal variation of SecuRom, then the security of our systems is not even protected by whatever commercial integrity Sony may have in ensuring that the content of the .exe file is controlled.
Basically, any commercial customer of SecuRom could edit the content of the .exe file to suit their own aims, and more importantly it means that SecuRom Toolkits are going to be floating around commercial offices all round the world for hackers and other less desirable individuals to lay hands on and expliot.
Because we are merely the customer, and therefore have no control over this process, we have no way of knowing whether a disc has Securom on it, or what options the disc supplier has taken, or what the SecuRom.exe file might have been programmed to do and by whom. Therefore, our systems are completely at the mercy of person or persons unknown, and under normal circumstances the average customer would have no way of knowing that his system has been hacked by this program at all, as it does not announce its presence or ask our permission before installing itself on our PC's.
-
Re: Kingdoms SecuRom discussion - forum rules only
Well as far as I can tell from what people say however SEGA didn't use a version with an executable in this case. So that's not exactly the problem.
I just don't like it on principle to have things installed in folders that I didn't even know were there, registry keys created I didn't expect and in general being forced to shut down cd-image mounting programs.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
I do not believe this is the case and I can't see how it would be different in Britain. A sales contract with the shop is a totally different contract regarding its sale. The EULA is a contract to protect the intellectual property (IP) rights of software developers. Check with your consumer body if in doubt.
I am but I'm pretty sure that under English law, you cannot change the terms of a contract after consideration has been exchanged.
As I said before....this is completely different when buying software for commericial organisations because there you do contract for the purchase of blocks of licenses and the software itself is free.
However, even in the commercial sector the vendor is not allowed to change the terms of the contract after consideration has been exchanged, and I have actually been involved in cases where suppliers have tried to impose terms on the purchaser by printing information on their invoices, or in some cases on their user agreements after the order has been placed, and in every case the English courts have ruled that these terms were invalid.
Quote:
Originally Posted by Nebuchadnezzar
* Just clicking “I agree” probably binds you to the contract.
Again...I think you will find that that is not the case in the UK. The basic issue is that there is no consideration being exchanged at that point and therefore there is no contract.
More importantly, you already have a valid contract for the supply of the game, which you entered into with the retailer and for which consideration was paid. Therefore, any attempt to change the terms of this contract would be deemed illegal under English Law.
Quote:
Originally Posted by Nebuchadnezzar
* You don’t have to physically sign anything. Some software packages, you may be agreeing to the contract when you remove the shrink-wrap on the package.
Nope! again merely removing the shrink wrap on a box is not consideration. Particularly if you have already paid for the box and its contents. At that point you actually own the box and everything in it and nobody at that point can impose any further restriction on what you do with it.
Quote:
Originally Posted by Nebuchadnezzar
* Doesn't matter that you can’t understand licence agreements, onus is on the consumer. You either agree to the terms or you can’t use the software.
As the terms are not binding this is not the case. The license agreement is nothing but noise and can be ignored. The only thing restricting your use of software purchased from a retailer are the existing and overarching laws relating to copyright and intellectual property.
I am interested to get an official ruling on this as I'm not sure if anyone has actually challenged this in a court of law before. The usual way of prosecuting software pirates is to use the standard laws, I'm not aware of any gaming company trying to actually enforce its licensing agreement. I suspect they would just get laughed at.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Zenicetus
If you don't have your gaming PC hooked up to the Internet, then I guess you don't have to worry about anyone hacking it for back door access. The hidden files might still be flagged by current or future anti-virus software, but maybe you're not running any if you're not online?
That's what one of the Mongol generals says in M2TW, when you click his icon on the strategy map -- "fear is a weapon, wise generals use well", but the hiliarious voice acting sounds like something out of an old Fu Manchu or Charlie Chan movie, where the villain swallows all the "L"'s. I just wrote out what I heard. :laugh4: I would have loved to have been there, during that recording session for the game. I'll bet they were all cracking up.
im not running any firewalls... allright.. im convinced... im going to try it...
thanx:2thumbsup:
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Didz
I am but I'm pretty sure that under English law, you cannot change the terms of a contract after consideration has been exchanged.
Quote:
Originally Posted by Didz
Nope! again merely removing the shrink wrap on a box is not consideration. Particularly if you have already paid for the box and its contents. At that point you actually own the box and everything in it and nobody at that point can impose any further restriction on what you do with it.
When you buy software you own nothing but the wrapping and the physical cd but not whats on it! What you also get is a licence to use it under strict conditions. Similar to a rental agreement only more attractivaly wrapped to create an impression that the buyer is actually buying something more tangible than only a licence.
Quote:
Originally Posted by Didz
More importantly, you already have a valid contract for the supply of the game, which you entered into with the retailer and for which consideration was paid. Therefore, any attempt to change the terms of this contract would be deemed illegal under English Law.
Lets assume that EULA's are illegal under English Law (therefore same would probably hold true in Australia) then logically it would be illegal to bundle a EULA within the software. This is clearly not the case as I am sure all software and pc games (and in some cases music CD's and movie DVD's?) are sold with a full EULA included.
Quote:
Originally Posted by Didz
As the terms are not binding this is not the case. The license agreement is nothing but noise and can be ignored. The only thing restricting your use of software purchased from a retailer are the existing and overarching laws relating to copyright and intellectual property.
Quote:
Originally Posted by Didz
I am interested to get an official ruling on this as I'm not sure if anyone has actually challenged this in a court of law before. The usual way of prosecuting software pirates is to use the standard laws, I'm not aware of any gaming company trying to actually enforce its licensing agreement. I suspect they would just get laughed at.
As stated previously a EULA was originally developed to protect the intellectual property rights of software developers but the question remains can what essentially amounts to copyright licence be turned into a contract? Until a court rules otherwise the answer probably remains as an affirmative and as yet that has not been challenged in Australia.
Nevertheless the law regarding shrinkwrap, clickwrap and browsewrap licenses remains, in many respects unclear. But keep in mind it is corporations like Microsoft, Adobe etc that are endorsing more invasive and controversial legislation regarding copyright & Intellectual property laws. This is understandable since they do have a vested interest to do so which according to their reasoning would minimize piracy and therefore increase sales.
Having read a few recent cases regarding this shrinkwrap licences I would hardly describe it as something someone would laugh at. Sadly, more recent cases in the US seem to very much rule in favour of corporations. On the other hand European cases seem to favour the poor consumer which for some bazaar reasoning is always portrayed as a victim.
Realistically an individual has no real financial means to challenge a corporation which have become adept at drawing out court cases to the point of bankrupcy.
Interesting reading here
http://www.bellevuelinux.org/eula.html
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
Similar to a rental agreement only more attractivaly wrapped to create an impression that the buyer is actually buying something more tangible than only a licence.
In my country, misrepresenting a product for sale or the nature of an agreement is considered fraud, punishable by fines and/or imprisonment. I sincerely doubt that this is what the game industry is doing when they wrap up their products in nice packaging.
Quote:
Lets assume that EULA's are illegal under English Law
If English Law is anything like Danish Law, you assume incorrectly. EULAs are not illegal, they are simply not legally binding. Writing any kind of BS on a piece of paper and calling it an "agreement" or "contract" does not make it so. EULAs are no more legally binding than the writing on the receipt.
Quote:
As stated previously a EULA was originally developed to protect the intellectual property rights of software developers
No. EULAs do no such thing, as IP rights are governed by applicable law.
EULAs were developed to push the corporate interpretation of the law on their customers. They are a PR efforts, nothing more.
Quote:
Having read a few recent cases regarding this shrinkwrap licences I would hardly describe it as something someone would laugh at.
Links, please.
A Linux site telling us that EULAs are really pacts with the devil, and that we should stay away from commercial software in favor of free software (incidently what they are trying to "sell"), is interesting?
Have you no critical reading skills whatsoever?
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
When you buy software you own nothing but the wrapping and the physical cd but not whats on it! What you also get is a licence to use it under strict conditions. Similar to a rental agreement only more attractivaly wrapped to create an impression that the buyer is actually buying something more tangible than only a licence.
Again, not in the UK. In the UK the essence of the contract is agree at point of sale, thus whatever the parties agree at the counter in the store (or the checkout of the electronic webstore) is the contract.
The customer is never informed prior to payment that he is not buying the software. He is allowed to beleive that he is buying the game, that means the entire product including the software. As that is the understanding at point of sale, then that is the essence of the contract entered into by the customer and anything that comes after that is not binding on either party.
This actually makes a lot of sense legally. If you think about it, if you were correct and all the customer was buying was the wrapping and physical CD then the customer would have no legal recourse to complain to the retailer if the software on the CD did not instal or work properly.
If the software on the CD was not included in the contract between the retailer and customer then the retailer would not be legally responsible for its quality, or indeed whether it existed at all. The only recourse the customer would have against the retailer would be if the packaging was defective or the CD was missing from the box. If the software was defective his only recourse would be against the software designers as by your argument his contract for the software would be with them, not the retailers.
The fact that this is not the case belies the fact that in the UK this is not the true. When you buy a game from a retailer you are paying FOR THE GAME, including the software, and the retailer is contractually responsible for the existence, quality and fitness for purpose of the entire product.
Thus, if the game does not run properly, you can take the game back to the shop and insist on your money back for failure to comply with the terms of the original contract.
Quote:
Originally Posted by Nebuchadnezzar
Lets assume that EULA's are illegal under English Law (therefore same would probably hold true in Australia) then logically it would be illegal to bundle a EULA within the software. This is clearly not the case as I am sure all software and pc games (and in some cases music CD's and movie DVD's?) are sold with a full EULA included.
No thats playing with words....the EULA's are illegal in that they attempt to vary the terms of an existing contract. In actual fact they are attempting to impose terms on a contract which the writers of the EULA are not even a party too. Attempting to do this is not legal but its not an offence, in fact I have given several examples during this discussion of ways commercial companies try to con their customers into believing that they are able to do this, the most common being the printing of sale conditions on invoices, and signs in shops limiting the time you have to return goods. There is nothing to prevent a retailer doing this but attempting to enforce these conditions would fail and could result in prosecution for unfair trading practices.
So, basically software companies are free to bunble whatever legal looking crap they like inside the CD box and on the CD, but it doesn't mean anything, and if they attempted to take action to enforce any of it they could become liable for prosecution.
Quote:
Originally Posted by Nebuchadnezzar
As stated previously a EULA was originally developed to protect the intellectual property rights of software developers but the question remains can what essentially amounts to copyright licence be turned into a contract? Until a court rules otherwise the answer probably remains as an affirmative and as yet that has not been challenged in Australia.
Thats not the case either....EULA's are not necessary to protect copyright or IP. Such things are protected under English Law in general along with all other such products. The reason we cannot see any case law confirming whether an EULA is enforcable or not, is quite simply because nobody has ever tried to enforce one.
Its not necessary, because the property is protected without it, and it would not be enforcable anyway because it was never the subject of a binding contract. As such it is just ignored by the customer and never becomes an issue to be challenged or enforced in court.
This is partly the reason why when I rang the OFT they were unable to give me an 'off the cuff' ruling, and presumably why they referred the issue up the chain for consideration. In fact, the SecuRom issue may be just be the catalyst that brings this issue to court, as SecuRom is being used to impose additional conditions on a contract (e.g. you may only instal this game 5 times) after the contract has been agreed. That IS an offence under English Law and could be challenged by a customer in a court.
Logic would suggest that any customer who buys a game which has been secretly restricted in this way, could take the retailer they bought it from to court and claim compensation for imposing a restriction on the use of the product which they did not disclose prior to purchase. This would then force the courts to make a ruling on whether this action is legal or not and that in turn would clarify the case law relating to all EULA's and their means of enforcement.
-
Re: Kingdoms SecuRom discussion - forum rules only
@ Nebuchadnezzar
may i ask what u base your assumption that UK courts will take the same view as Austrailian courts on?
although most common wealth countries have the same old english law that that their thie legislature is built on, it dioes not necessarily mean they are applied in the same way today.
As you say american courts always take different view to european courts and i personally think the european courts have got it right. its the consumer who need protection not the corporation. they have enough money to employ the biggest lawyers to represent them consumers do not.
also would like to point out that UK courts always apply a test of reasonableness to any contract. i have first hand knowledge where 2 parties were operating undercontract for several years which was signed under no duress or misinformation. however the contrct was drawn out in a way that was totoally biased to one party and restrictive to the other. although the disavantaged party was fully aware of what they were signing (they didnt pay attention to detail due to personal trust) a majortiy of the ureasonably restrictive claused were ignored by the courts.
the point i'm trying to make is that any contract even if signed properly with full information will still not be binding if unreasonable to one party. similarly just because an EULA exists doesnt make it binding.
another point is that wheather ot not the EULA is legal/reasonable or binding does not matter if the vendor has not taken enough steps to ensure that the customer is aware of any limitation cluases. having clicked to the agreement is not going to be enough as the courts will look at the practical reality of what people actually do when they install software. i doubt enough people actially read an EULA or even understand it for it be legally binding.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Didz
Again, not in the UK. In the UK the essence of the contract is agree at point of sale, thus whatever the parties agree at the counter in the store (or the checkout of the electronic webstore) is the contract.
The customer is never informed prior to payment that he is not buying the software. He is allowed to beleive that he is buying the game, that means the entire product including the software. As that is the understanding at point of sale, then that is the essence of the contract entered into by the customer and anything that comes after that is not binding on either party.
This actually makes a lot of sense legally. If you think about it, if you were correct and all the customer was buying was the wrapping and physical CD then the customer would have no legal recourse to complain to the retailer if the software on the CD did not instal or work properly.
If the software on the CD was not included in the contract between the retailer and customer then the retailer would not be legally responsible for its quality, or indeed whether it existed at all. The only recourse the customer would have against the retailer would be if the packaging was defective or the CD was missing from the box. If the software was defective his only recourse would be against the software designers as by your argument his contract for the software would be with them, not the retailers.
The fact that this is not the case belies the fact that in the UK this is not the true. When you buy a game from a retailer you are paying FOR THE GAME, including the software, and the retailer is contractually responsible for the existence, quality and fitness for purpose of the entire product.
Thus, if the game does not run properly, you can take the game back to the shop and insist on your money back for failure to comply with the terms of the original contract.
No. The wrapping, physical CD and the licence to use the game/software on the CD.
Off coarse they have recourse. It includes a warranty and the usual trade practices act, consumer act etc...
If you think you own it for $50.00 or whatever so install it on as many computers as you like, make as many copies as you wish and sell them off at a lower cost. Your kidding me right?
Quote:
Originally Posted by Didz
Thats not the case either....EULA's are not necessary to protect copyright or IP. Such things are protected under English Law in general along with all other such products. The reason we cannot see any case law confirming whether an EULA is enforcable or not, is quite simply because nobody has ever tried to enforce one.
A EULA nowadays includes many additions including any restrictions of use, disclaimers, warranties, support information and reminders of statutory rights to consumers just to name a few.
Your kidding me right. Adobe, Microsoft not enforce their EULA's
Where have you been lol...
Believe me. There are enough case reports, all you need to do is a bit of searching.
@Tamujin
What am I, your legal rep? Go and search your own links out. At the same time why not discover a book.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
@Tamujin
What am I, your legal rep? Go and search your own links out.
I have searched, and can find nothing on "recent cases regarding this shrinkwrap licences" where such things were enforced. I did find this, though:
http://www.freibrun.com/articles/articl22.htm
A clear example of a shrink-wrap license not holding up in court, in the "corp-friendly" US of A no less.
You claimed to have read of recent cases where such licenses were upheld. I politely request that you back that claim up with actual information.
Quote:
At the same time why not discover a book.
And what the **** is that supposed to mean?!?
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Didz
Again...I think you will find that that is not the case in the UK. The basic issue is that there is no consideration being exchanged at that point and therefore there is no contract.
More importantly, you already have a valid contract for the supply of the game, which you entered into with the retailer and for which consideration was paid. Therefore, any attempt to change the terms of this contract would be deemed illegal under English Law.
This is a very interesting take on it. My gut reaction is to say that the payment to the retailer is the consideration, because the retailer is a licensed agent of the copyright holder. That would make the payment price the consideration for the EULA contract. That said, it would only work if the company you bought the game from really was acting as an agent. I wonder if all retailers have contractual agreements with the publishers?
However, even if the retailer was an agent of the publisher for the purposes of the original purpose, I doubt they are for the purpose of selling used games. I know that one of the reasons EB/Gamestop pushes used games so heavily is because they do not have to pay any royalties to the publisher for those sales. If no money is going back to the publisher, I cannot imagine that it can be considered the act of an agent. This would mean that there is no way for consideration to be exchanged with the publisher when buying a used game. Thus the EULA would be an invalid contract because of a lack of consideration.
Didz, I am very impressed. That is a line of legal analysis I had never even thought of before. I'm going to ask around the office and see what some of the other attorneys think.
-
Re: Kingdoms SecuRom discussion - forum rules only
I'm not sure on this, but doesn't the agent (seller) pay the publisher to get the game on the shelf and the actual sale basically pays back the price of the game to the seller plus a bit more (which is the difference between amount paid to publisher and sold to consumer)?
At least I remember a friend who runs a bookstore telling me that he has to buy the books from the publisher and they basically belong to him, although he can send back a reasonable amount for reimbursement at times. Usually he jsut gets the difference or a royalty agreed witht he publisher when buying the books to sell.
-
Re: Kingdoms SecuRom discussion - forum rules only
Yep, which is why the used game market is a major focus for game retailers. They do not have to pay royalties on them. So, even though the game originall retails for $50, the retailer may only get $5 of that. In contrast, the same game that sells for $30 used results in $30 for the retailer, so it is far more profitable, even though it sells at a lower price.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
If you think you own it for $50.00 or whatever so install it on as many computers as you like, make as many copies as you wish and sell them off at a lower cost. Your kidding me right?
"Fair use" means I can install it on as many computers as I like (so long as I only play it on one at a time) and I can make as many copies as I like so long as I dont infringe on their copyright ie I dont sell the copies or give them to non-licence holders others to use.
Didz is correct in that companies make all kinds of statements that have no legal bearing whatever. They just count on an unsophisticated public to believe their statements are legally backed in some way. One of the more common ones here are signs on gravel trucks saying "keep back 300 ft - not responsible for broken windshields". I always laugh when I see those.
-
Re: Kingdoms SecuRom discussion - forum rules only
I recently paid $4000 for a computer solely for use as a gaming platform. I don't even have a word processing program on this thing. I have a package from Amazon waiting for me at home. Guess what's in it? Guess what will be going back to Amazon tomorrow morning?
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by jepva
I recently paid $4000 for a computer solely for use as a gaming platform. I don't even have a word processing program on this thing. I have a package from Amazon waiting for me at home. Guess what's in it? Guess what will be going back to Amazon tomorrow morning?
That seems a little extreme to me. If I had $4000 for a gaming machine and I liked M2TW enough to buy kingdoms I'd play it. Re-formatting the drive when you're though isnt that big a deal. I guess you're playing other games though or maybe you're extremely principled.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by SpencerH
That seems a little extreme to me. If I had $4000 for a gaming machine and I liked M2TW enough to buy kingdoms I'd play it. Re-formatting the drive when you're though isnt that big a deal. I guess you're playing other games though or maybe you're extremely principled.
Are you serious? It's more than reformatting the drive. SecureRom installs hidden, non-deletable files in the Windows registry (and lord only knows where else). So we're talking about a HD wipe and a complete re-install of Windows to clear out the system. You'd do that just for one game?
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
No. The wrapping, physical CD and the licence to use the game/software on the CD.
Off coarse they have recourse. It includes a warranty and the usual trade practices act, consumer act etc...
If you think you own it for $50.00 or whatever so install it on as many computers as you like, make as many copies as you wish and sell them off at a lower cost. Your kidding me right?
The point you are ignoring is that if the contract at point of sale was only for the box and its content then there would be no contract with the retailer which covered the quality of the software on the CD, and if there was no contract to cover the quality of the software then the consumer would have no legal right to return the software to the retailer if it was faulty.
Under your scenario, the contract for the software would be the subject of the license agreement and not entered into until the consumer agreed to accept the terms of the EULA, At that point a second contract would be formed into between the consumer and the software supplier and so if the software proved to be faulty then the consumer could only hold the software supplier accountable for it and would have to deal direct with them. Not the retailer.
The fact, that in the UK this is NOT the case, proves, in my opinion, that the contract at point of sale includes the software on the disk. As such the retailer is legally responsible under the contract to rectified or replace any faulty software at their own expense.
This was in fact tested in the Blizzcon case where we were told quite clearly that despite being supplied with, and installing, the wrong software we had NO contract with Blizzard, only with the retailers who sold us the game. Thus despite the fact that we had been sold the wrong version of the software on the disk the only recourse we had was against the retailers who sold us that software.
Quote:
Originally Posted by Nebuchadnezzar
A EULA nowadays includes many additions including any restrictions of use, disclaimers, warranties, support information and reminders of statutory rights to consumers just to name a few.
Your kidding me right. Adobe, Microsoft not enforce their EULA's
Where have you been lol...
Believe me. There are enough case reports, all you need to do is a bit of searching.
I have...and I've spoken to the OFC. We went all through this issue with the Blizzcon case. Just accept the fact the English Law doesn't work the way you think it does. The contract is soley with the retailer who sold you the game, the EULA has no legal impact, its just noise during the installation process and cannot be legally enforced. End of story.
Quote:
Originally Posted by TinCow
This is a very interesting take on it. My gut reaction is to say that the payment to the retailer is the consideration, because the retailer is a licensed agent of the copyright holder. That would make the payment price the consideration for the EULA contract. That said, it would only work if the company you bought the game from really was acting as an agent. I wonder if all retailers have contractual agreements with the publishers?
I would argue that even if the retailer was the agent for the copyright holder, the terms contained in their EULA cannot be included as terms in your contract with the retailer as at the point of sale the purchaser is not given the opportunity to understand what those terms are. English Law states that the terms of any contract are only those terms which have been disclosed, understood and agreed prior to the exchange of consideration. Therefore, even if the retailer told the customer 'This purchase is subject to the terms contained in the EULA inside the box', those terms would NOT be legally binding upon the purchaser, becuase the purchaser had no opportunity to understand them before he paid for the product.
To make the EULA a legally binding part of the contract the customer would have to be forced to read and sign it before the retailer sold him the game, and I can just imagine the uproar about that in a crowded high street game shop. However, go and buy a mobile phone and that is exactly what you are forced to do before the phone is handed over and your money taken. Thats because the contract for the purchase of a mobile phone does have to include the contractual terms imposed by the network company who supply you with the service. Thus those terms have to be agree with the customer before the customer pays for the phone, otherwise they would NOT be legally binding on the customer.
Now, as I explained to Neb some game retailers that require you to DL the software off the internet might well force you to accept the terms of their EULA before you commence the download and they debit your credit card. Whether an English court would accept that ticking a tick box on an internet site is sufficient proof that the purchaser read the EULA is less certain but at least the process is in the correct sequence. In the Blizzard case, the ruling was that Blizzard's publication of a notification that their European Burning Crusade Collectors Editions contained the wrong version of the software on the disks was 'insufficient to ensure that all customers were informed of the error prior to purchase, and therefore did not vary the nature of the contract between the retailer the customer', which is not quite the same thing but gives some indication of how English Law views internet based disclosure.
If they did accept it as evidence of understanding then terms of the EULA would indeed form part of the contract, but this method of sale is still pretty rare. Most games are still sold as boxes and so the EULA has no legal value.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Zenicetus
Are you serious? It's more than reformatting the drive. SecureRom installs hidden, non-deletable files in the Windows registry (and lord only knows where else). So we're talking about a HD wipe and a complete re-install of Windows to clear out the system. You'd do that just for one game?
Re-format the drive and re-install windows and hardware drivers. Depending on the size of the HD's and the "phase of the moon" (for windows), two hours tops.
As I said, if I spent $4000 for a PC (which I dont) and I liked M2TW (which I dont) and I had purchased Kingdoms (which I havent) I'd probably play it. After all I purchased my first PC to play CIV2 (used macs before that) and I've certainly purchased PC's with higher end graphics than I need in order to play TW (and RoN).
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Zenicetus
Are you serious? It's more than reformatting the drive. SecureRom installs hidden, non-deletable files in the Windows registry (and lord only knows where else). So we're talking about a HD wipe and a complete re-install of Windows to clear out the system. You'd do that just for one game?
Reformatting is wiping the HDD ~;)
And yeah, I'm not in that situation, but were I paranoid enough to care about SecuRom, it wouldn't particularly bother me...
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by SpencerH
Re-formatting the drive when you're though isnt that big a deal.
Yes it is.
If you don't consider that having to format your drive after uninstalling a game is "big deal", then you should get a reality check.
-
Re: Kingdoms SecuRom discussion - forum rules only
Considering how many files can still be recovered (by specialists) from a formatted hard disk, one does have to wonder whether all traces of these rootkit-like devices are truly removed and no longer readable.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Akka
Yes it is.
If you don't consider that having to format your drive after uninstalling a game is "big deal", then you should get a reality check.
Down boy! Down!
I'm not a fan of Securom or of the fact that companies use such rubbish. [sarcasm]It took a whole half hour to get around CIV4's Safedisk "protection" after learning it didnt like alcohol[sarcasm].
As for reality, as I said in my last post I dont consider re-formatting and re-installing that big of a deal. I had to do it just a few months ago due to what I thought was a faulty catalyst control center - they are virtually impossible to remove too.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by FactionHeir
Considering how many files can still be recovered (by specialists) from a formatted hard disk, one does have to wonder whether all traces of these rootkit-like devices are truly removed and no longer readable.
If you do a full format and partition they're gone.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by FactionHeir
Considering how many files can still be recovered (by specialists) from a formatted hard disk, one does have to wonder whether all traces of these rootkit-like devices are truly removed and no longer readable.
They'll still be there, to be sure; but will be in a completely unreadable state, as the fresh OS can't 'know' that they exist, or where they are ~;)
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Didz
If they did accept it as evidence of understanding then terms of the EULA would indeed form part of the contract, but this method of sale is still pretty rare. Most games are still sold as boxes and so the EULA has no legal value.
I'll take your word on it for UK courts. US courts have consistently upheld the validity of EULA agreements, so long as the terms of the EULA are not unconscionable or otherwise abhorrent to the law. That said, I can't remember any discussion of consideration so perhaps that line of reasoning has not yet been advanced. Of course, now that I've said that, the more likely situation is that I have simply forgotten or never read the right caselaw in the first place.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Nebuchadnezzar
If you think you own it for $50.00 or whatever so install it on as many computers as you like, make as many copies as you wish and sell them off at a lower cost. Your kidding me right?
The difference between EULA restrictions and copyright law have been explained about 20 times during the course of this thread, and youre still trying to drag it out as a valid argument again?
One more time: Copyright law has nothing to do with EULA. Copyright and itellectual property law still applies whether a EULA exists or not, and regardless of whether you clicked 'ok' or if you even bought the software in the first place. Its a LAW, not an agreement.
Laws trump agreements, every time. Without fail.
Quote:
Believe me. There are enough case reports, all you need to do is a bit of searching.
@Tamujin
What am I, your legal rep? Go and search your own links out. At the same time why not discover a book.
If you state something to be true, the onus is on you to come up with supporting evidence. We're not going to prove your arguments for you, thats your job.
-
Re: Kingdoms SecuRom discussion - forum rules only
Didz:
I talked to a contract law specialist and it seems we're both totally off-base. Consideration isn't required for the EULA because the EULA isn't a contract at all. It's a Licensing Agreement (Duh! :wall:) which is simply the terms that the copyright holder imposes to allow the user to use the work. Since it is not a contract, it can be revoked by the copyright holder at any time. Licensing Agreements made with consideration (such as a specific payment to Microsoft to allow 50 copies of XP to be installed for business purposes) become valid contracts, but that is not the case for typical retail sale of games. MMOs demonstrate contractual licensing agreements, as the contract is directly with the publisher and a monthly fee is partly consideration for use of the work.
Essentially, when you buy the game in the store, you are simply purchasing the physical box, manual, and disk, not the right to use the work on the disk. In order to use the work, you then have to agree to the non-contractual EULA which can be revoked by the copyright holder at any time.
Obviously, the EULA itself cannot violate copyright or contract law, and any provisions in it that do so are invalid and non-binding. However, any terms that are otherwise construed as legitimate by the courts are binding as part of your agreement with the copyright holder to use the work. So, the real question is not whether the whole EULA is valid (which it generally is) but rather whether the individual clauses are unconscionable or otherwise in violation of the law.
Good thing I haven't been asked to write any contracts recently! :oops:
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Didz
The point you are ignoring is that if the contract at point of sale was only for the box and its content then there would be no contract with the retailer which covered the quality of the software on the CD, and if there was no contract to cover the quality of the software then the consumer would have no legal right to return the software to the retailer if it was faulty.
Under your scenario, the contract for the software would be the subject of the license agreement and not entered into until the consumer agreed to accept the terms of the EULA, At that point a second contract would be formed into between the consumer and the software supplier and so if the software proved to be faulty then the consumer could only hold the software supplier accountable for it and would have to deal direct with them. Not the retailer..
Please allow me to review a few cases I dug-up if I may.
In the shrinkwrap case Step-Saver Data Sys., Inc. v. Wyse Tech it was claimed that the contract was made at the time of sale (or in this case over the telephone) and the shrinkwrap license encased was a proposals for addition to the contract. The court held that the terms of the shrinkwrap license were not enforceable because Step-Saver had not assented to them.
and again with Arizona Retail Sys. v. Software Link, Inc. The court followed the Step-Saver rationale claiming the terms of the shrinkwrap license was a proposal for a modification to the contract.
But things start making a turn from this moment. The link Tamujin posted regarding the shrinkwrap case ProCD, Inc. v. Zeidenberg is a classic in which the article describes how the court held that the license agreement terms contained inside the Select Phone package constituted additional terms to which Zeidenberg did not agree. Although I did notice a short statement in the article that the case is currently on appeal before the U.S. Court of Appeals. (Although its dated 1996) this particular case seems to be doing the internet rounds as a Samson Vs Goliath victory for consumers but the truth being that under appeal the ruling was reversed. ProCD, through the retail store, was the offeror, and had proposed a contract that the buyer would accept by using the software after having an opportunity to read the license. When Zeidenberg used the software he accepted, creating a contract including the terms of the shrinkwrap license.
Again M.A. Mortenson Co. v. Timberline Software Corp., where Mortenson argued that the license was a contract modification but the court followed ProCD and held that the license terms were part of the agreement.
Much of the litigation regarding clickwrap (the I agree popup thingy you have to agree too before install/use for first time in software) licenses the courts have found to be enforceable such eg in i.Lan Systems, Inc. v. Netscout Service Level Corp. and Caspi v. Microsoft Network.
Conclusions:
A contract is only completed when the user agrees to the terms popup and not at time of money change-over at the store. Take for example a sporting event where the purchaser pays money up front and later receives the tickets with the terms included. Logic dictates this is not uncommon nor unreasonable and should be regarded as a legitimate means of transaction. The money first terms later transactions are here with us to stay whether you like it or not. The onus is very much on the consumer which can request a copy of the terms before purchasing or even return the software if they do not wish to accept the terms at time of installation.
Quote:
Originally Posted by Didz
Just accept the fact the English Law doesn't work the way you think it does. The contract is soley with the retailer who sold you the game, the EULA has no legal impact, its just noise during the installation process and cannot be legally enforced. End of story.
I am not familiar with the Blizzcon case so am somewhat reluctant to comment especially a case thats still pending. But do forgive me for being sceptical because I don't accept the word of a single individual particularly if it contradicts more orthodox reasoning.
-
Re: Kingdoms SecuRom discussion - forum rules only
Quote:
Originally Posted by Daveybaby
The difference between EULA restrictions and copyright law have been explained about 20 times during the course of this thread, and youre still trying to drag it out as a valid argument again?
One more time: Copyright law has nothing to do with EULA. Copyright and itellectual property law still applies whether a EULA exists or not, and regardless of whether you clicked 'ok' or if you even bought the software in the first place. Its a LAW, not an agreement.
Thank you so much for reminding me, however you are incorrect. A EULA has very much to do with intellectual property and copyright. Since the software in most cases must be installed on the users computer there need to be restrictions to protect the commercial interests of the makers and its simply very naive to think that standard copyright and IP laws are sufficient. A EULA is used to expand control over someones work for which the standard copyright protection law is deficient and perhaps denied. It can also be used to protect the IP rights and copyright in countries were such laws are absent or deficient.
Quote:
Originally Posted by Daveybaby
If you state something to be true, the onus is on you to come up with supporting evidence. We're not going to prove your arguments for you, thats your job.
I would have thought my opinion as pretty orthodox from a commercial perspective. If someone wishes to provide an alternative opinion then don't you think they should be providing the supporting evidence? If they wish not to accept it then thats OK too.
I could just as easily quote Tamujins reply-post with "Links Please" replies.
