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Topic: An illegal blend ? (Read 710 times) |
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Nightblade
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Posts: 7
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An illegal blend ?
« on: Jan 5th, 2004, 7:49am » |
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This pertains to software to which Microsoft holds the rights and administers the EULA.
The software in question is the PC game "Dungeon Siege", along with the publically available editing tools released to end users for the purpose of creating new user content commonly referred to as "mods".
It is my belief, and please correct me if I am in error regarding this, that any such "mods" created as a result of using these tools remains the legal property of Microsoft - as the "mods" themselves are purely derivative works which could not have been created to begin with in absence of the original software to which Microsoft holds the rights.
So my question is this, can an individual who uses this software create a "mod" which consists of some degree of alledgedly original content, along with the proprietary file types necessary to make this "mod" function correctly with the the original software - and then make use of a software "flag" embedded in the code to "lock" the compiled "mod", making it impossible for all other end users to decompress this proprietary file format, which is allowed by default by the original copyright holder (Microsoft) by means of using the tools made available and which are specifically covered in the EULA ?
In essence, the individual in question has released his own "mod", in which some degree of content is claimed by him to be his own IP, and using this reasoning has denied access to all other end users who download and install his mod to the other files which are contained within the propietary file format which constitutes a "mod" file .
He has publically stated that this "mod" is HIS game, and also pubically refused to untoggle the internal software "flag" which prevents users from using the file to which he holds no legal right to lock in the first place with the associated editing software.
He believes that simply because he has thrown in some small degree of original content that he is legally entitled to deny all other end users access to the files contained in this prorietary compressed format, to which only Microsoft holds the rights, in a stated effort to protect what small portion of it is his own IP from "theft or unauthorized use".
I informed him that since he does not hold any legal right to the vast majority of the files which are embedded within this proprietary file format, he does not have any legal right to block access to said files - that his only legal course of action is to remove the lock and subsequently initiate litigation against those who do illegally use the files included as part of the "mod" which do constitute content he may lay legal claim to.
As a result of stating all of this to him in the forums in which he "holds court", all of my posts were summarily deleted and I was banned from re-entering the forums.
So it is my intent to pursue this matter, as it seems quite clear to me that not only is this individual in violation of the EULA, but that he has indeed "reverse-engineered" the EULA itself - daring to write HIS OWN EULA for the "mod" he released. I'm more than reasonably sure that Microsoft does not extend the right to end users to write their own EULAS for works which are purely derivative of original works they (Microsoft) hold all legal rights to.
Further, it can be proven that he has used the position afforded him as a result of his creation of this "mod" to profit - by means of taking advantage of the popularity of the mod to use his increased recognition as a means of getting those fans of his "mod" to go out and purchase his books - as he is a an author who has published works available for sale to the public.
Indeed, he even posted in the forums a request for those who read it to "go out and buy his books so that he could afford some new shoes".
While he will certainly claim that this was only meant in jest, it will nonetheless stand up in a court of law as an effort to profit from the creation of his "mod", something which Microsoft's original EULA specifically prohibits.
It is my intent to contact Microsoft in regard to this and make them aware of this individual.
Should Microsoft refuse to enforce their own EULA, I believe it would be feasible to initiate a class action litigation aginst them, as a refusal to do so denies all other end users the rights which are granted to us by their EULA, in that we are all (meaning all of the end users they have licensed to use their software)- as a result of this individual "locking" the file, denied access to files which we are legally entitled to gain access to in an effort to use them with the tools released by Microsoft for use with the original software.
Should it not be illegal for this individual to state that "If you don't like that I've violated your rights under the original EULA, then simply do not download my mod " ?
In short, one end user cannot create a derivative work and write their own EULA for it which supercedes the rights granted to all end users by the original EULA - and any refusal on the part of Microsoft to enforce this is tantamount to making their own EULA null and void.
Also, one cannot deny all other end users the rights granted by the original EULA to access all file formats and content which are covered in the original EULA as being freely accessible to ALL end users who use the associated tools released by Microsoft which facilitate access.
Any feedback on this is most welcome.
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| « Last Edit: Jan 5th, 2004, 7:56am by Nightblade » |
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M. Arthur Auslander
Full Member
I love YaBB 1G - SP1!
Posts: 541
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Re: An illegal blend ?
« Reply #1 on: Jan 5th, 2004, 8:36am » |
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Dear Nightblade,
You are entitled to what you create even if it is an infringment of anothers rights. You may not be able to legally use or sell what you have created.
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| « Last Edit: Jan 21st, 2004, 7:30am by M. Arthur Auslander » |
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M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
Reality Check® ELAINE's Workshop®
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Nightblade
Newbie
Posts: 7
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Re: An illegal blend ?
« Reply #2 on: Jan 5th, 2004, 8:46am » |
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Thank you for your response.
As I may have not made sufficiently clear, this "mod" in question has been widely made available for download to anyone who wishes it - thus, it is now in a state of being used by those members of the general public who fall within the category of licensed users of the original software copyrighted by Microsoft.
Is it not true, then, that this extends well beyond personal rights of creation, and into the area of illegal use ?
Also, is it not illegal to attempt to "force" those who download this mod to agree to having their rights under the original EULA violated by insisting they must agree to the terms of a second EULA created by an end user who has no legal right to supercede the original EULA in the first place ?
Further, if I am interpreting the below passge(from the original EULA in question) correctly, end users are specifically prohibited from including ANY original content in one of their "mods", by virtue of the fact that such files cannot be specifically identified beforehand, given that no knowledge of them exists on Microsoft's part at the time the EULA was released.
And I quote :
"2: Editors. If the SOFTWARE PRODUCT contains a software Editor, or a software Editor is made available to you by Microsoft for use with the SOFTWARE PRODUCT, you may use the Editor only in conjunction with that content specifically identified in the documentation for use with the Editor. If no content files are identified, you may not use content or other files from the SOFTWARE PRODUCT with the Editor. You may reproduce and share files or scripts created with the Editor with friends or family on a non-commercial basis only. Microsoft does not grant you the right to sell or otherwise distribute files from the SOFTWARE PRODUCT in exchange for value."
I am here to learn what is true and what is not, so please do not misinterpret anything I post as challenging or stubborn, I am merely asking questions.
Thank you.
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| « Last Edit: Jan 5th, 2004, 9:01am by Nightblade » |
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Nightblade
Newbie
Posts: 7
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Re: An illegal blend ?
« Reply #3 on: Jan 5th, 2004, 9:32am » |
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The EULA itself, Part One :
Additionally, this is a direct cut and paste of the very latest EULA which governs the most recent release of the editing software.
GAS POWERED GAMES(tm)
SOFTWARE LICENSE AGREEMENT
NOTICE: Please read this entire Software License Agreement ("Agreement") carefully. It is a legal agreement between you and Gas Powered Games(tm) Corp. ("GPG") for any and all of GPG's software products that are a part of the DUNGEON SIEGE TOOL KIT(tm) or any other GPG software product which creates modifications for GPG's DUNGEON SIEGE(tm) game (the "Game"), including but not limited to SIEGE EDITOR(tm), SIEGE MAX(tm), DS ANIM VIEWER(tm), DSMOD(tm), any future additions or modifications to said products, any sample files released in connection with said products, and all related code, images, video, audio, music, characters and text (collectively, "Software"). The Software is designed to be used only in connection with the DUNGEON SIEGE(tm) game (the "Game"). After you read this Agreement, you are asked to indicate whether you accept or decline. If you agree to all of the terms of this Agreement, indicate this by clicking the "I agree" button, in which case you will be bound to the terms of this Agreement. If you don't agree, click "I decline." If you choose to decline, you will not be able to install the Software. By installing, downloading, accessing or using the Software, you agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not install or use the Software. GPG is willing to license the Software to you only upon the condition that you accept all of the terms contained in this Agreement.
1. License.
The Software is licensed as provided below, and not sold or otherwise transferred. Upon your acceptance of this Agreement, GPG grants to you the non-exclusive license to do the following, provided that you possess a valid license to the Game and that you comply with all terms and conditions of this Agreement:
a. use the Software on a single computer for the sole purpose of making modifications to the Game ("Modifications") for your personal use;
b. make one copy of the Software in machine-readable form for back-up purposes only. You must reproduce on such copy GPG's copyright notice and any other proprietary legends that were on the original copy of the Software.
c. make and distribute unlimited copies of your Modifications that may contain portions of the Software or Game software, but only if (i) such copies are not made or distributed for a commercial purpose, and no money is received for such Modifications; (ii) such copies contain this Agreement and display the copyright and other proprietary notices that appear in the Software and Game software; and (iii) the portions of the Software or Game software copied are necessary to reproduce your Modifications. Any transfer of Software or Game software or the rights hereunder that is not specifically allowed by this Paragraph 1 is prohibited and shall be deemed ineffective.
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| « Last Edit: Jan 5th, 2004, 9:35am by Nightblade » |
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Nightblade
Newbie
Posts: 7
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Re: An illegal blend ?
« Reply #4 on: Jan 5th, 2004, 9:33am » |
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The EULA itself, Part Two :
2. Ownership of Intellectual Property.
GPG owns all right, title, and interest in and to the Software and in all copyrights, patents, trademarks, trade names, inventions, know how and trade secrets relating to the Software or to the design, manufacture, operation or service of the Software. Except as otherwise stated above, this Agreement does not grant you any intellectual property rights in the Software. All rights not expressly granted herein are hereby reserved by GPG. The Software is protected by United States copyright law, international treaty provisions and other laws. The words GAS POWERED GAMES(tm), DUNGEON SIEGE(tm), DUNGEON SIEGE TOOL KIT(tm), SIEGE EDITOR(tm), SIEGE MAX(tm), DS ANIM VIEWER(tm), and DSMOD(tm) are the exclusive trademarks of GPG. This Agreement does not grant you any rights in connection with those trademarks.
3. Restrictions.
a. You may not reverse engineer, decompile, disassemble, modify or adapt the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
b. You may not rent, lease or lend the Software.
c. You may only use the Software for your private, non-commercial use. You may not use the Software in any way to provide, or as part of, any commercial service or applications.
d. You agree not to copy or distribute the Software except as specifically allowed in Paragraph 1 above.
4. Right to Modify or Discontinue; SIEGE MAX(tm).
You acknowledge that GPG shall have the right in its sole discretion and without incurring liability, to modify the Software or discontinue its support or discontinue its use or distribution at any time and for any reason. You understand that SIEGE MAX(tm) operates only in connection with GMAX software, which you must obtain from Discreet, a division of Autodesk, Inc. (GMAX and Discreet are the trademarks of Autodesk/Discreet). You agree that GPG has no obligation to insure that GMAX software remains free of charge or available.
5. Comments from You; Release.
You may from time to time provide suggestions, comments or other feedback to GPG concerning the Software ("Comments"). Refer to www.DungeonSiege.com for methods of providing Comments. You agree that all Comments are and shall be given entirely voluntarily, that you release any and all rights in the Comments, and that GPG shall be free to use, disclose, reproduce, license, modify, distribute or otherwise exploit the Comments as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
6. DISCLAIMER OF WARRANTY.
You understand and acknowledge that the Software may contain bugs, errors and other problems that could cause system or other failure and data loss. You expressly acknowledge and agree that use of the Software is at your sole risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (1) THE SOFTWARE AND ANY RELATED DOCUMENTATION ARE PROVIDED "AS IS" AND WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER; (2) GPG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS OR ACCURACY; (3) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS; AND (4) THERE IS NO WARRANTY THAT THIS SOFTWARE, GPG'S EFFORTS OR THE SYSTEM WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS OR WILL PERFORM SATISFACTORILY. SOME STATES/JURISDICTIONS MIGHT NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
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