EULA Discussion

[david1314 44]

This was a topic that came up on another thread that was closed for another reason.  I would like to continue this discussion here:

dadyrghluv said:

just so u know guys, using a no-cd patch of any kind is breaking the EULA of the game simcity4 and/or it's expansion or deluxe edition.

it's also fround upon here at simtropolis, to even discuss things of this nature. even though u own SC4, u have the right to a "backup" copy of the disc, THATS IT. not to use a cd-crack of the game. your only real option that is legal is to buy the game again.

read your EULA if u don't agree!quote>

I said:

The EULA does not extend to private usage. They cannot monitor private usage because it is private.

You can alter any game file on your own computer any way you want. It's totally legal.

The EULA is not binding because it is an unsigned, unilaterally issued contract against the consumer.quote>

dadyrghluv said:

i beg to differ with u david, but u are wrong. the EULA is binding due to the fact to agree to it, when u install the software on your computer. as with a dvd movie, it clearly states u cannot copy, reverse engineer, ETC. this software even without monetary gain.

like i said, if u don't agree, read the EULA to any software or game manual u own. it will clearly tell u what is not allowed, including using cd-cracks, which is "reverse engineering." to bypass a security code, installed on the disc, is just that, illegal.quote>

I said:

Muh, you keep following yours, and I'll keep ignoring mine.

Regardless, I bet neither of us get caught.quote>

dadyrghluv said:

lol, of course not, but still, it's not allowed to be discussed here at simtrop. i wasn't trying to be rude, i was just stating the facts of what i know from being here a long time.

the odds of them coming after u in next to nil, even though i think it should be allowed to do, only if u own a legit copy. who am i to go up against the big wigs of these companys? i'm just another average joe just like u.quote>

\

hawkpride147 said:

from a legal standpoint...if you use a no-cd patch created from your own copy of the game, and only use it on your computer, it is perfectly legal. if you are using someone else's game or patch, or distribute one you created, you are breaking the law. dadyrghluv is right. this is frowned upon here...so unless you can use your current disc to create the patch (which i believe i understand that you can't do anything with the disc cuz it's damaged), you need a new copy. and an EULA is binding because you cannot install your game without accepting it...whether or not you read it, or agree with it. you accepted it, and it WILL stand in a court of law...quote>

[david1314 44]

Anyway, back to the point, it will NOT stand in court.

The problem is that commonly, the sale is a portion of the user licensing agreement (otherwise you're just paying for packaging...and you would expect the company to provide the game freely for download).

So, since you have purchased it, you have full rights to the usage of your purchase. This cannot be limited by a "contract" being given to you after the fact. Additionally, the company must AFFIRMATIVELY prove that the individual in question personally accepted the license agreement. Since there are no signatures involved, you essentially have to offer up this voluntarily.

If the company made refunds-in-full readily available to any person who does not accept their license agreement, it might stand some in court. But courts have recognized this is not the case and that an individual cannot be held to the "contract".

Also, there is the rather conspicuous absence of any signatures on the agreement, either mine or the company's representative.

But anyway, it comes back to the point that the burden of proof lies upon the licenser rather than the licensee in court, and the 5th ammendment prevents the licenser from compelling you to incriminate your self.

So, if only de facto, the EULA is not binding to an individual at all.

Edit: this little site gives a slightly better rundown of how I could try to EULA your rights from you, why you would never agree, and by extension why they are not legal documents:

http://smallprint.netzoo.net/reag/

[Easy Bakes 253]

Why is an average EULA longer then my house mortage paperwork?

Thats the question we need to ask.

[Xyloxadoria 1,099]

I saw a line in a EULA for a CD that came in a book  that i find kind of disturbing:

"We will not be responsible for accidental death that results from the use of this software"

[hamsterTK 93]

I like to take the "don't ask don't tell" attitude with those...honestly though people who ask about cracks/piracy on sites like these are n o o b s plain and simple....if you want a no cd crack go find it yourself, nobody is stopping you.

don't get me wrong though , I own the game...want proof: I have the double dvd box for deluxe and the old 2 cd set for the vanilla version that I got for my 16th birthday in 2004.

[david1314 44]

No one is talking about cracks...that thread was closed. This is an offshoot that goes far beyond that topic. Don't get this one closed too.

[purpledaddy 6]

Yes!  Bureaucracy! 

Seriously, these kinds of discussions about the sanctity and or legality of the EULA happen all the time at the Sims sites. That's b/c of their controversies over paysites.  Buuuuut, given that I can't afford more Expansion Packs and Stuff Packs that are still coming out even as they tout a sequel, and that custom content, pay or free, tends to wreck my computer, and that similar controversies and issues are nonexistant w/ Sim City fans (except for the stealing of the game itself  -don't do it!!!), and despite that I help to write this stuff for the Real Life Bureau of Bureaucracy, my reaction is...(yawn.)

[krbe 193]

Bah. Who needs the EULA? The law tells me what I need to know, and it says that you can find plenty of wrong assumptions in those "agreements".

By the way, Microsoft owes me all their profit since 1990! It stood in the Windows 2000 EULA—when do you think I'll get my rightful money?

[SimRabbit 48]

You are all a bunch of pirates

My point is if you pay for your software you can do all kind of things except for distributing it illegaly. It's like buying your own car, you can paint it to a diffrent color or replace the car stereo.

[krbe 193]

You don't own the software. You own a license which give you a right to use the software. If you use the car analogy: You're not permitted to find out how the engine works, or to replace the light with you own.

[david1314 44]

Actually, you own the software.  Courts have held this.  Unless it was sold, marketed and agreed at the POS (point of sale) that it was the license you were purchasing, you bought the software.

My credit card receipt says Purchases: Software: Sim City 4...no doubt yours does to.  In fact, I bet not one person paid their hard earned money for a contract.  It was agreed at the POS that I was purchasing software, not a contract.  I own the software.

And the car analogy is a rather good one.  Obviously, there is no prohibition against working on your own car.  Nor is there any prohibition on explaining the innerworkings of a vehicle so another individual could work on their own car.

[Duke87 1,070]

Originally posted by: krbe You don't own the software. You own a license which give you a right to use the software. If you use the car analogy: You're not permitted to find out how the engine works, or to replace the light with you own.quote>

Well, that depends on whether you're leasing the car or whether you bought it. If you bought it, it's yours and you can do whatever the hell you want with it. Making unauthorized modifications usually voids any warranty you might have, though.

As for "finding out how the engine works"... well, you can reverse engineer anything you own. That's perfectly legal and no one can stop you. What's illegal is to then copy the design of the engine and use it in your own line of cars you intend to sell- at least if the design is patented. If it's not patented, or if the patent has expired, then you can do that too.

The "engine" on which SC4 runs is no doubt patented. Patents (at least in the US) last for 17 years. Since the game was released in January 2003, the engine was probably patented in 2001 or 2002... meaning it would expire in 2018 or 2019. So you can't use it for profit until then, but you can attempt to reverse engineer it all you want so long as you don't intend to make a profit on it. This in essence also means that any game released prior to today's date in 1991 cannot possibly have an engine that's still patented. So SimCIty Classic's engine, go ahead and make a game based on it and sell it. Patent expired two years ago. SimCity 2000 becomes fair game for that in 2010.

I should also point out that this very site has many user-made game modifications, like the NAM and whatnot. Is a no-CD crack not also a "user-made game modification"? The only real difference is that one is permitted in the EULA while the other is not- but as has been said, an EULA is not a legally binding contract. If it was, you'd need to be 18 or older to agree to one, and an actual physical signature would be required. All violating the EULA really means is that EA has the right to void your warranty, deny you tech support, and ban you from their site. They can't sue you or anything.

To sum up:

Legal to make modifications- yes

Legal to distribute copies of modifications in patch form- yes, so long as you don't make a profit

Legal to distribute modified copies of the whole game- not until the copyright expires

Legal to sell modifications- not until the patent expires

[krbe 193]

That's the point with the car analogy: In a software context it is flawed. You haven't bought the software, or the music you've (legally) downloaded: You've paid for the right to use it. It's treated like any other agreement, and here (Denmark) that means that you have to abide by the terms, unless they're against a law, limits your rights according to legislation which protect consumers, or the terms are immoral.

What is clear, however, is that if you disagree with any of the terms set forth in various license agreements, you may bring it back to the store and get your money back. Previously, when software came on floppies and megabytes were valueable, software agreements were printed agreements which was enclosed inside the box. If you broke the seal, you had agreed to the terms. This could of course not last, and it was later ruled that all these agreements were void, since you could of course not agree to an agreement where the terms were unknown! That's why all installation routins (at least for software sold here) bears the note: If you do not agree with the terms set forth in this agreement, you may return this software to the store where you bought it and get your money back.

Lastly, here an agreement does not need neither a physichal or digital signature to be valid. Parties may agree upon almost anything which do not limit personal freedom to too great an extent, or conflicts with ordre public (the former does not apply to corporations), in any way they wish, including on-screen EULAs.

The last paragraph is about the situation in Scandinavia, which is far less strict than that of many other states, e.g. in Southern Europe.

[Duke87 1,070]

I suppose that's the problem, then: copyrights and laws pertaining to copyrighted material vary from place to place. What's quite illegal in one country may be perfectly legal in another.

And since the internet involves people from all different countries interacting, it's hard to define what exactly applies. If, for instance, something is legal to distribute in the US but illegal to distribute in Europe... then it's fine for me as a US citizen sitting in the US to post it and for anyone else in the US to download it, but someone from Europe is not allowed to download it... and it's tricky to gatekeep things and permit US users to download it while blocking European users from doing so. It's not impossible (look up where the persons ISP is, for instance), but it's the kind of thing that a fansite not run by a company with professional web designers would have a hard time with. And it's not perfect, since it is possible for someone to have an ISP in a different country as them.

Of course, there's also the "where is the server" issue. Simtropolis' server is in Hamilton, Ontario (Canada) if I recall correctly. What do the laws in that jurisdiction say?

[krbe 193]

The first question posed by your post is governed by the Berne convention, which means that my work get the same treatment as American works in the US, and your work get the same treatment as mine does in Norway (with some exceptions on the protection period).

The copyright laws between the countries don't vary that much in what is protected and what is not protected;where it varies is how it asess damages and the likes. For example that you might have payed punitive damages for grave copyright infringments in the US, where that is proihibited by European law (and by extending that line, if I had been sentenced to pay punitive damages to you for me infringing on your copyright in the US, the suit you'd file in Europe would most likely be tossed out, especially if the court would write "[...] USD 50 000 in damages and punitive damages".)

[Easy Bakes 253]

So online games must be different.

when I log on the Ever Quest 2 oneof the 1st screens that comes up is agreeing to the EULA. If you dont agree you dont log on.

[david1314 44]

Easy Bakes: The burden of proof still lies upon the company to show the individual has 1) agreed to the EULA; and 2) breached EULA. The company still has a huge burden in showing it was YOU or your superiors who agreed to the EULA.

It's a bit more questionable than an in-box EULA, since your agreement to it is much more proximate to your usage. And insofar as (so I understand) you must have the Ever Quest servers to maximize the game play value, Ever Quest's owners would be wholy within their rights to ban you for 'abuse' of the EULA. So, while it does stand as a "terms of use" for the online service, the fact that Ever Quest retains the de facto authority to enforce their EULA makes their EULA binding to the extent that you wish to utilize their services.

At the same time, this case also exhibits the absolute maximum of limits an EULA has with regards to a Business to Consumer relationship. The only 'rights' it affords to the company is that they may deny access to you for items which they could otherwise deny access to as their right as proprietor. In that sense, the EULA holds the same place in legality as anywhere else in law: NONE.