Author Topic: You don't own that game you bought (copyright)  (Read 5404 times)

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Offline kat

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You don't own that game you bought (copyright)
« on: September 15, 2010, 01:17:25 AM »
Why? Because you purchased a 'license' and not a 'product'. A 'license' basically means you have no material rights to the item you're in possesion of except to use it. If you then want up upgrade or 'get rid of' the item, you're actually legally obliged to return or destroy it. That's the law now according to a new ruling by the Ninth Circuit Appeals Court on the case of Vernor vs Autodesk

Quick background recap. Vernor sold some copies of AutoCAD on ebay, Autodesk tried to shut him down. Vernor and Autodesk go to court with the latter claiming the former didn't have right to sell the software as he, in Autodesk's eyes, possessed the material illegally. As the software was sealed  and accompanied by legitimate license codes (although they were stuck to the outside of the packaging)  Vernor and his Legal Council understood this to mean he had legitimately 'bought' the software from the previous owners assuming therefore, that ownership rights had been duly 'transferred' to him as a result.

According to the ruling, this is wrong.

Autodesk claim the original owners of the software only licensed  it and as such that meant  they didn't have any rights to it except in being able to use it; their case rests on the fact that their software is licensed and not sold which means the end-user only acquires what equates to a 'permission of use'. That's it. So what Vernor then did is of secondary concern because the original owners were actually legally obliged to destroy the software once they were done with it (in affect, they could be prosecuted for copyright infringement - selling/distributing something they didn't have the licensed rights to do).

But there's a problem.

Autodesk contends that the license is non-transferable so it cannot be passed on to another person or entity in any way, shape or form. What everyone reporting on this seems to be missing is that a license is a contract and as such it needs to be agreed to or acknowledged in order  for it to be binding   between all affected parties. The crucial question here is; at what point is that agreement made? When the material is purchased? When the packaging is unsealed? Or when its installed or the user clicks "I Accept These Terms"?. If it's the former, then quite frankly we're all rather screwed. If it's the latter then was Vernor acting as nothing more than a reseller like Tiger-Direct, Jigsaw24 or any number of the thousands of  resellers who purchase their stock to sell on to their customers, usually from wholesalers. Remember according the the report itself, the software was sealed. Unless I've missed something reading the ruling, it doesn't mention anything to do with this: at what point is the agreement made and then binding between parties. The whole case seems to rest upon determining this fact.

Now you don't need to be a genius to understand the implications of this, if the Autodesk ruling stands it means that pretty much anything consumers purchase with a license is likely being  bought under the same sort of non-transferable conditions as Autodesk and its AutoCAD software suite. That means end-users cannot sell on their games, music or DVD's. Period. What about hardware? Want to sell on your old iPhone? Got an old PC you want to get rid of? If this ruling stands it's all going to need to be stripped bare of any licensed material, returned to the manufacturer or simply destroyed, you can't even return item to the place of purchase because doing so is in the literal sense  transferring ownership of the item.

This is pretty much the silver bullet the likes of the RIAA, MPAA, the various software associations and other industry bodies that protect 'licensing' and 'copy' rights, have been looking for and needing to prosecute not just file-sharers, but also the used-games, software, music, film and DVD markets, all of which have been on the a hit-list for a  long, long time.

How do consumers fight back? Go independent, open source and where-ever possible, simply don't use their stuff.

Offline pazur

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Re: You don't own that game you bought
« Reply #1 on: September 19, 2010, 09:38:36 AM »
Is this now UK or US law?

Offline kat

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Re: You don't own that game you bought
« Reply #2 on: September 19, 2010, 03:41:21 PM »
Technically it's US law. But, and this is a big "but", it's argued under the remit of "copyright" to which many Western Nations are signed up (Berne Convention on copyright as well as DMCA) and by a company that has global holdings. In theory if you were in Guatemala selling Autodesk software (or anything for that matter) on EBay, they have the precedent to shut you down forthwith now because their software is sold globally under the same license conditions.

Offline pazur

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Re: You don't own that game you bought
« Reply #3 on: September 21, 2010, 10:42:22 AM »
I remember when Windows moved from an "ownership" to a "license" model in Germany. There have been some protests and people claimed it's against German law but in the end MS introduced it.

Offline kat

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Criminal offense to embed videos
« Reply #4 on: June 04, 2011, 02:08:00 AM »
There's an interesting article on TechDirt about a possible legislation amendment to the US Copyright Act that would make is a *criminal* offence to enable "public performance" of Copyrighted material without proper license, potentially turning the 'innocent' embedding of family videos, game walkthroughs, tutorial vids a nightmare of 'property' rights.

You couldn't fob this off onto YouTube et-al either because they generally already have various disclaimers in place - to which you agreed when you uploaded - that provides them with a reasonable degree of 'Safe Harbour'. So although this would seem relatively harmless to some, or impinging on First Amendment Rights to others, it sets the broader precedent turning much of what are (currently) 'civil' infringements into 'criminal' ones that have harder fines and sentencing attributed to them (in some cases greater punishments than are associated with 'harder' crimes like assault, DUI and so on).

Obviously this is notwithstanding the matter of policing all of this, something that's only really practical for deep pockets, so yet again one could argue the case that it's another attempt by the media industry (campaign contributors) to strong-arm or shoehorn the 'new' virtual world into conforming/compliance with an old rather archaic distribution/ownership models that only protects those that can afford it.

References

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #5 on: June 08, 2013, 02:03:11 PM »
Interesting article from T3 on the XBox One and Microsoft speaking to consumers not owning the games/software they buy (thanks FB buddy ;))

Offline ratty redemption

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Re: You don't own that game you bought (copyright)
« Reply #6 on: June 10, 2013, 10:23:34 PM »
agreed, that was very interesting, although i'm not surprised by any of it since i remember reading those type of eula's at least a decade ago.

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #7 on: June 11, 2013, 12:17:56 AM »
TBH.. whilst the EULA's *have* been there, I think the recent outcome mentioned above with respect to Autodesk and the eBay guy has probably given sway to the likes of Microsoft to take a much harder line on what constitutes the 'product' a consumer purchases (just what are we buying?).

The one big issue the author of that T3 article didn't mention (no-one else has either from what I've read/seen)... is that in order for MS to 'manage' the kinds of licensing privileges they are to grant users, their products have to be tagged and bagged. In other words, they system *requires* fixed identifications with respect to who has what - MS will know the who, what, why, when, where of product usage - the only options in that instance are as always with this type of rights management, we either use and accept what that means, or not use it and become Luddites.

Again it's hard not to think conspiratorially on matters like this but the games press typically neglect to either point these issues out, make them a none-issue or ignore them outright despite their being genuine concerns of consumers.

The big issue I have with these sorts of systems is that from a broader point of view, they actually dis-empower the user, giving them false choices - you can have any colour you like as long as it's one we provide for you.

Offline ratty redemption

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Re: You don't own that game you bought (copyright)
« Reply #8 on: June 11, 2013, 01:27:27 AM »
good points, and that a hobson's choice isn't it?

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #9 on: June 11, 2013, 03:02:24 AM »
Yep that's the one.. was a toss up between Hobson's, Morton's or Buridan's ass. True story. ;)

Offline ratty redemption

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Re: You don't own that game you bought (copyright)
« Reply #10 on: June 11, 2013, 02:48:29 PM »
he he.

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #11 on: December 10, 2013, 08:08:18 PM »
Oops, wrong topic. Heh

Offline kat

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You don't own that YouTube video you uploaded (Content ID Claims)
« Reply #12 on: December 14, 2013, 01:57:38 AM »
YouTube is/has changed the way videos are monetised and what that means for video producers; it basically now means that revenue that YouTubers earn can be redirected in part or whole to the publisher (note that's usually the publisher rather than developer). A legal-beagles look at the new policy.

The rub of the issue relates to publishers now being able to claiming that gamers posting walk/play through videos are infringing their Intellectual Property without necessarily making a claim using DMCA. Instead YouTube provides a "Content ID Claim" mechanism for sure matters. In other words, the ability to commercially exploit someone else's material, even indirectly though Ad Revenues as is the case here, needs to be licensed. When that's not done properly, it leaves the author open to CIDC's being lodged against them.

So in similar vein to the original topic post, you don't own that game you bought, you similarly now don't have the 'rights' to be posting videos of you walking/playing through someone else's game (because it doing so contains their copyright material in the form of artwork and other intellectual expressions).

But why just game play videos? If the basic problem revolves around the incorrect licensing, or a misappropriation of IP, what's to stop that being claimed for other materials; tutorials, product breakdowns, amateur product reviews or indeed against any of the myriad ways people create non-exclusive;y transformative/derivative works (which might otherwise protect them under Fair Use, being transformative or derivative works) - especially where ad revenue is involved.

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #13 on: December 19, 2013, 03:54:02 AM »
A bit more news on YouTube Content ID system;
The first one doesn't talk about the following per-se but it is a real problem when using a system that's actually outside the realms of proper channels for dealing with Copyright - YouTube, or Google, are not a Copyright channel. This means what they're doing could potentially jeopardise future, and possible legitimate, claims of Copyright infringement because it doesn't take into account Fare Use, Derivative and/or Transformative Works allowances. In affect, Google is not a Copyright Authority so has no ability to verify a claim. This means it MUST honour any claim that comes through to it via the Content ID system else it be held liable and loose it Safe Harbour status with DMCA (which is the appropriate channel for some basic control).

The second article has broad consequences to creators and authors because once they sign their Rights over to a third party, usually a publisher, they then have absolutely no control as to how the Publisher then polices those acquired right (Privileges). In other words, they don't really care about reputation and will make claims on the creators behalf so any bad press is directed at the author and not the publisher or third party policing apparent claims of copyright.

Offline kat

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Re: You don't own that game you bought (copyright)
« Reply #14 on: December 25, 2013, 06:10:46 PM »
This is what happens when corporations leverage their size to implement systems that bypass established Law, Copyright & DMCA in this instance. Publishers, like BMG, in wanting a quicker way to effectively take down content without doing through legal channels (aka DMCA), push for and abuse systems like Content ID. Claimants (copyright 'owners') are then not technically breaking the Law, because these types of systems are 'internal' and based on the voluntary policing of content based on Terms of Service, rather than Copyright, violations. In YouTubes case for example, when a Vlogger uploads they do so stating implicitly that they own the content and all rights therein. When a claim comes in countering this, YouTube can claim a ToS violation to be dealt with appropriately as is their want.

This is why Content ID is dangerous; it allows publishers ('Claimants') to make 'soft' copyright claims against users that typically result in take-downs, disablement's, or revenue share/confiscations without specifically having to invoke full Copyright claims and remedy through DMCA (or it's localised equivalents), which would broadside them for prosecution where a claim would have to be explicitly clarified.

Content ID is what happens when corporations abuse their power to find ways around established Law. And make no mistake, they will have had plenty of dark, smoky room conversations with lawyers to make sure none of them can be held liable for anything as a result of Creators incomes being screwed with. So be warned.. if music in particular does need to be used, do your due-diligence, and cite sources (give credit) where necessary to avoid, if not mitigate, the types of mess the chap linked to above found himself in.

Incidentally, just because the song itself may be in Public Domain, that should not be taken to mean the manuscript, arrangement or other aspect of the music used is. And that's where the trap lies. So be warned.

 


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