On Wed, 9 Jul 2025 17:29:41 -0700, in comp.sys.ibm.pc.games.action,
Dimensional Traveler wrote:
On 7/9/2025 8:00 AM, Zaghadka wrote:
"But the EULA says you are licensed and you own nothing," you say.
So what do the _courts_ say? ;)
As you mentioned there are legal cases over this. To date the big
companies have won. We will see if they keep winning. I'm not opposed
to making these things more customer friendly, I wish they were and hope
some of these cases make it so.
I am heartened by your response. I get your wink. You're cynical. Why
wouldn't you be?
But that's exactly it. The courts _haven't_ decided on a lot of important matters, nor has there been a recent ruling to address the current fact pattern. The landscape has changed to nearly 100% digital delivery. It's
all piecemeal rulings, clause by clause, and none of them deal with that current fact. There was a standoff with the ownership of physical media. Digital delivery is the reset button. It's a new ballgame. Play ball!
- - -
That's the TL;DR. You can stop there, because I can be a bore, but if for
some reason this interests you more deeply, I'm gonna start cheerleading. Autism, ENGAGE! _There will be no footnotes_.
- - -
Don't be cynical. It's better than it looks. There have been wins.
I forget the exact case, but one of the things that was established in precedent is you do own physical media and can copy it for "backup
purposes." It opened a loophole you could drive a truck through. Every
pirate on Earth started claiming "backup." An entire industry of software
to make forensic copies and hardware that enabled it to be done quickly flourished all on the say-so of "backup" and "ownership of physical
goods." It included resale. That's the current precedent. Keep it gray.
There is also standing Library of Congress guidance that criminal claims
under the DMCA for disabling DRM will not be pursued if there is no other legitimate way to run the software for documentation purposes. This can,
of course, be rescinded at any time. Another loophole. Cracks are, in
some capacity, unpursued grayware. Keep it gray.
We even won voluntary refunds, when things got bad enough, to remedy the
claim of an agreement entered under duress (with no resale available,
they essentially stole your money). *Despite* qualified disclaimers of
"implied warranty of merchantability" boilerplate in the EULAs. Those
claims were, /de facto/, ceded by the industry, even if they're still in
the EULA. The desire to stay out of court results in self-regulation. As
a result, we can now return a game simply if "we don't like it." Hardly a
win for publishers. But... Keep it gray.
Now there's no physical media, no resale, and no unrunnable SafeDisc to
crack, and so we're back to (*shrug*). The industry disclaims everything, maintains ambiguity, and tries like hell to keep it out of the courts.
Because it can, at any point, all come crashing down. It's a legal house
of cards based on a body of overbroad, consumer abusive, untested claims.
Its only purpose is intimidation.
Any analysis I've given is to demonstrate that there is hope. I am not
saying it's a done deal because I know better. I'm saying we shouldn't
say things like "We've already agreed to this."
Because we haven't.
We haven't agreed that we "don't own our games." We've agreed to tolerate
and comply with the only way to play them: through licensure. That
decision was tolerable due to ownership of the physical media and the
legal rights that came with it. We owned *something*. Argument on the specifics, in court, is costly and a hassle. It's games, after all.
Some of us have relented to the insidious intimidation of grayware
clickwrap EULAs, which is the purpose: To get us to accept it /de facto/.
To get us to cede our rights. To get us to believe either we can't sue or
that we've given consent. We have not. The facts have changed. We're back
to a standoff. We again own nothing, and we should not accept it.
But so many people in this group already do.
I say don't believe it. The battle has always been waged in the margins
of "see you in court." For various reasons, that generally doesn't
happen.
AFAIC, they've officially pushed it too far (again), [obvious negative consequence] has happened, some in the industry have even arrogantly
flexed about it, and now the lawsuits are flying (again).
We'll see what the courts have to say about it. Fingers crossed. There's
a domino effect coming if there's a definitive decision. Their lawyers
aren't that incompetent (keep it gray), but we can hope.
--
Zag
What's the point of growing up
if you can't be childish sometimes? ...Terrance Dicks, BBC
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