[MUD-Dev] Blacksnow revisted

Caliban Tiresias Darklock caliban at darklock.com
Tue Apr 2 09:39:03 New Zealand Daylight Time 2002


From: <amanda at alfar.com>

>> Not without a specific individual contract, which does not exist
>> in the case of a software service or a CD sale, but DOES exist in
>> the case of real estate.

> And, of course, an account which authorizes you to play an online
> game.

That would be a software service, which I do believe I already
covered.

>> The CD sale example you provide seems to forget that the CD
>> manufacturer doesn't say you can't do these things, the LAW says
>> you can't do them.

> No, the LAW only says that you only have the rights granted to you
> by the publisher.  The publisher decides which rights those are
> for each publication.

The rights provided to you by the copyright holder can *only* extend
to the rights that are normally EXCLUSIVE to the copyright
holder. He may provide you with a limited license to broadcast, or
to publicly perform, or to make backups. But he CANNOT take away
your existing rights. The law says that you have these rights, and
he has no authority to alter them except by executing a specific
individual contract. (Which has nothing to do with IP law,
incidentally, and becomes very hairy indeed when you start having to
examine the contract laws of multiple localities.)

It is the position of many/most software vendors that an EULA
constitutes a binding contract, but this has yet to be seriously
tested in court. It is the position of the world at large that an
EULA constitutes the ludicrous wishful thinking of a software
company and does not mean anything, so there's a serious possibility
that this public perception will prevent any EULA from having much
if any binding authority over the behavior and rights of the user.

<EdNote: Deletia>

>> The manufacturer may not further add that you can't listen to
>> track 4 in your car stereo.

> Well, as of the DMCA, they can, but that's a rant for another
> mailing list.

Okay, I'll bite. Where exactly does the DMCA say anything of the
sort, and why does it supersede USC 17 section 110(4)(A)?

Short answer: it doesn't, on either count. I don't think *I'm* the
one who needs to go study IP law.

>> In the case of real estate, anyone who thinks getting an account
>> on a MMORPG is like buying real estate needs a reality check.

> You're confusing parts of the dicussion here.  You claimed that a
> sale can't come with post-sale conditions on use.  I gave several
> examples demonstrating that it can indeed.

No, you gave two, which are hardly "several" -- and one of them was
wrong. A CD does *not* normally come with post-sale conditions
imposed by the publisher, and while real estate *does* come with
such conditions, I believe I was perfectly clear in my statement
that an online game account is not anything at all like real
estate. In fact, virtually every country's legislation has *always*
recognised that NOTHING is at all like real estate, and that real
estate must be treated in a very different fashion than other types
of property. (For example, real estate can be "stolen" in legal
terms even though one can certainly not physically pick up the land
and run off with it when the owner isn't looking.)

>> But that's not anticompetitive. You may say that I can't eat
>> these things in your theatre, but you can't say I'm not allowed
>> to eat them or buy them at all.

> Well, I'm sure Mythic doesn't mind if you don't use the mithril
> armor you bought from BlackSnow in the actual game...

And I'm sure you know using the item isn't the competitive practice
to which I was referring, but go ahead and play retarded if it makes
you feel better.

>> But they *cannot* come out of the park and disrupt my personal
>> life, like cancelling my auctions on eBay. If the amusement park
>> sent people to my house to make sure I was abiding by the rules
>> there, it would be harassment.

> If you are scalping tickets to an event, or otherwise violating
> conditions of sale, yes they can ask eBay to cancel your auctions,
> and no, it's not harassment.

If I am selling a service, which does not yet exist, and therefore
has no owner, then they cannot tell the mediating party of the sale
that they own the item being sold. If they do it anyway, then yes,
it *is* harassment. It is also a lie. Mythic is not allowed to lie
to a third party in order to enforce its EULA, any more than Enron
was allowed to lie to its investors to keep the stock from crashing.

> There have been many contributions to this thread which amount to
> "they can't tell me what to do" or "they can't kick me out for
> that."

There have also been many contributions which amount to "it belongs
to them and they can do whatever they want with it, so THERE" --
which is just about as stupid.

The fact is, Mythic *can* tell you what to do within certain
boundaries, and they *can* kick you out for whatever reason they
want. But when Mythic steps outside those boundaries and starts
meddling in your life outside their server, they do not have the
right to do that. Mythic is simply *not* allowed to persecute
current or former users on the grounds that they have violated game
policies, and there is no excuse for it.

> When it comes to use of other peoples' intellectual property, the
> fact is that this is often not true, even when common sense might
> make it seem as though it should be.

When it comes to intellectual property, it's always amusing to see
that people's loyalties are always firmly on the side of the bread
that happens to be buttered in their business... until they want
something someone else has. Napster is evil, says the musician,
until he wants the latest number one song on MP3. Warez are piracy,
says the programmer, until he wants 3DSMax and can't afford it. Mass
reproduction cheapens the original, says the sculptor, until he has
to pay the rent.

And when it comes to sale of property, you're conveniently allowed
to sell whatever YOU want, but when someone else wants to sell
something you think they shouldn't... hey, that's someone else's
intellectual property! MY idea!  MINE! MINE! Philips is a German and
he have my pen!

So pardon me if I think it's just a big load of hypocrisy and
stupidity among artists too nervous and insecure to actually create
anything new.  Copyright is not there for you to get paid over and
over for things you already did, it's there to encourage you to
create new things. When it doesn't do its job, chances are there's
something wrong with it.


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