Excellent Accursed Farms video on software ownership rights and need for advocacy

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Delicieuxz

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Just as how "Windows as a service" is sheer disingenuous propaganda meant to subdue Windows owners into accepting whatever garbage Microsoft pushes on them while Windows is actually by legal definition a product and a good, there are similar questions to be raised about "games as a service". Ross raises those questions in this brilliant video of his.

The Accursed Farms video's total length is 1 hour and 15 minutes, so make sure you have some time to watch it, but it's well worth doing so. And the more people who do watch it, the better things will be for gamers and people who like to not have their property stolen from them by corporations.






One of the sources he uses in his video is this thread I made on the Linus Tech Tips forums:

You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda

I already am a big fan of Ross' game review videos, and I've multiple times lamented when checking his YouTube page that I've already watched all of them at least once. And the topic of software ownership rights is important to me. So, I'm happy that information I put out helped him for his video.


I had meant to update the LTT OP for a while with additional information about software ownership law that applies to the US and to many other countries, so I'm now a bit disappointed that I didn't do that sooner.

I've now edited the LTT OP some more, though there is still more that can be improved about it. Notably, however, since making the LTT thread, I came across the information that software is already classified as a good in the US, because the US, like Canada and I think all other Western countries as well as many non-Western countries, is signatory to the Nice Agreement multinational treaty.

The Nice Agreement puts the classification of goods and services under the authority of the World Intellectual Property Rights Organization. The World Intellectual Property Organization classifies all forms of software as Class 9 goods, including:

090591 - computer software, recorded
090658 - computer programs, downloadable
090670 - computer game software, recorded
090717 - computer software applications, downloadable
090732 - computer hardware
090791 - computer software platforms, recorded or downloadable
090802 - computer screen saver software, recorded or downloadable
090829 - computer game software, downloadable


Ross' arguments and research laid out in his video can't be summarized in a post like this, and he makes good use of every minute of it. It's well worth watching and learning from. And the more people who do watch it, the better things will be for gamers and people who like to not have their property stolen from them by corporations.
 
The US' membership in the Nice Agreement multinational treaty raises some questions about the 2010 Autodesk vs. Vernor Ninth Circuit appeals court ruling (which was later superseded by the 2013 US Supreme Court ruling), which suggested that in some cases people don't own their software (a contradiction of the WIPO classification of software as a good):

Did WIPO simply not yet have software added to their goods classification at the time of the appeals case in 2009 and 2010? The Nice Agreement has existed since 1957, but the oldest WIPO classification document on their website is from 2013, and WIPO had already classified all forms of software as Class 9 goods by then.

Or, was the topic of software ownership and digital technology in general at that time simply so foreign to courts and lawyers that they didn't realize this was already established in multinational treaties that the US is signatory to, and so and it just slipped by everyone's awareness?

Whatever was the case, if that information had been available and known at the time of the Autodesk vs Vernor appeals case, it's a pretty safe bet that the outcome of that appeals case would not have been in Autodesk's favour.
 
Fantastic video. This hits hard as my favorite game falls in this category. Rainbow 6 Siege. Gotta be online to play, good content is often limited and never returns (Outbreak, Pick & Ban). I have zero control. If the servers go down, its over. Some EA games I owned essentially survived 5 years on console before the servers are pulled. The only reason I played those games were to play with friends.
 
I didn't watch this video but I am a Certified Software Asset Manager (aka CSAM) by https://iaitam.org/. This means that I actually have to read and understand all of the terms and conditions that are in software contracts and End User License Agreements (aka EULAs that no one else reads) and this is what I do for a living (with about 2 dozen coworkers and contractors working this with me) at a multi billion dollar company and we spend literally mid 9 figures a year on software.

No one actually buys software anymore. You just buy the rights to use the software. You don't actually own anything. You are buying the right to use the good and not buying the good itself. It is kinda like buying a season pass to a theme park. You are granted access to it with restrictions but you don't actually own any of it.
 
[21CW]killerofall said:
I didn't watch this video but I am a Certified Software Asset Manager (aka CSAM) by https://iaitam.org/. This means that I actually have to read and understand all of the terms and conditions that are in software contracts and End User License Agreements (aka EULAs that no one else reads) and this is what I do for a living (with about 2 dozen coworkers and contractors working this with me) at a multi billion dollar company and we spend literally mid 9 figures a year on software.

No one actually buys software anymore. You just buy the rights to use the software. You don't actually own anything. You are buying the right to use the good and not buying the good itself. It is kinda like buying a season pass to a theme park. You are granted access to it with restrictions but you don't actually own any of it.
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That's not true, and is just a myth. EULA terms count for next to nothing (in many countries literally nothing) because they're not laws and corporations don't have the power to make laws or to overrule laws with their EULA terms.

The law throughout the Western world and beyond says that you own the software you purchase and numerous courts throughout the Western world have ruled such in cases against software companies.

Check out this thread to see many examples of law and court cases on this topic: You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda


For example:

EU Top Court: When You Buy Software You Own It

EU Court Says, Yes, You Can Resell Your Software, *** Even If The Software Company Says You Can't ***
 
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Delicieuxz said:
That's not true, and is just a myth. EULA terms count for next to nothing (in many countries literally nothing) because they're not laws and corporations don't have the power to make laws or to overrule laws with their EULA terms.

The law throughout the Western world and beyond says that you own the software you purchase and numerous courts throughout the Western world have ruled such in cases against software companies.

Check out this thread to see many examples of law and court cases on this topic: You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda


For example:

EU Top Court: When You Buy Software You Own It

EU Court Says, Yes, You Can Resell Your Software, *** Even If The Software Company Says You Can't ***
Click to expand...
Yep, when I purchase a disc with some software on it, I am purchasing a copy of some software (see copyright law) and I am allowed to do whatever with that copy as long as I comply with copyright and dmca. Now, I can't force a company to keep their servers up or write software which will run without them – their servers are provided as a service to me free of charge (generally), as an owner of their software. I didn't buy a copy of their server software, nor the rights to use it.
 
Jim Sterling has given a shout-out to Ross' video, suggesting his viewers watch it. It's at the start of this video:

 
Delicieuxz said:
That's not true, and is just a myth. EULA terms count for next to nothing (in many countries literally nothing) because they're not laws and corporations don't have the power to make laws or to overrule laws with their EULA terms.

The law throughout the Western world and beyond says that you own the software you purchase and numerous courts throughout the Western world have ruled such in cases against software companies.

Check out this thread to see many examples of law and court cases on this topic: You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda


For example:

EU Top Court: When You Buy Software You Own It

EU Court Says, Yes, You Can Resell Your Software, *** Even If The Software Company Says You Can't ***
Click to expand...
I work in the US and this has not been conclusively ruled in the US.
 
[21CW]killerofall said:
I work in the US and this has not been conclusively ruled in the US.
Click to expand...

What's notable, though, is that there is no standing ruling suggesting that people don't own their software in the US, and that the US is signatory to the Nice Agreement that puts the classification of goods and services under the administration of the World Intellectual Property Organization. And the WIPO classifies all software as a good.

The most authoritative ruling in the US on the matter is the 2013 US Supreme Court judgment that affirmed the first-sale doctrine to apply to all goods and that people don't require any permission from the copyright-holder to be able to resell their copyrighted goods - which includes software.
 
Delicieuxz said:
What's notable, though, is that there is no standing ruling suggesting that people don't own their software in the US, and that the US is signatory to the Nice Agreement that puts the classification of goods and services under the administration of the World Intellectual Property Organization. And the WIPO classifies all software as a good.

The most authoritative ruling in the US on the matter is the 2013 US Supreme Court judgment that affirmed the first-sale doctrine to apply to all goods and that people don't require any permission from the copyright-holder to be able to resell their copyrighted goods - which includes software.
Click to expand...
I work for a large corporation and as such, we have to assume that what is written in the EULA and contract terms will be held up in court until the US court system can confirm what terms can actually be legally binding. Basically my job boils down to risk mitigation. As a small company or as an individual, you don't have nearly as much risk (or as deep of pockets) as multi-billion dollar corporations do if you end up being on the loosing side of a court case/decision.
 
GaaS is yet more rentier-class taxation of the populace. I actually call this, generally, the "toll booth economy" ... whereby rentier-class members setup tolls throughout the economy to siphon off bits of productive capacity from the economy.

While there may be an initial expenditure to setup the toll booth, the taxation then created is not commensurate with the value that the "service" has created. They're simply taxing the residual replay value on video games which, if you recall, we never had to pay in the past; it's only that the rentier-class figured out that they can setup a toll booth in this part of the economy.

The GaaS model should simply be regarded as another toll in the "tollbooth economy" that has been imposed on the bridge of life. I would fully expect more game companies to try to adopt this.
 
[21CW]killerofall said:
I work for a large corporation and as such, we have to assume that what is written in the EULA and contract terms will be held up in court until the US court system can confirm what terms can actually be legally binding. Basically my job boils down to risk mitigation. As a small company or as an individual, you don't have nearly as much risk (or as deep of pockets) as multi-billion dollar corporations do if you end up being on the loosing side of a court case/decision.
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imho, i purchased a copy of the software (which includes the documentation that comes with it, eulas, etc). If I then agree to an eula or whatever, that is my own business and has nothing to do with the company I purchase the software from, regardless of what the agreement was. If I had signed an agreement and sent that to the lawyers as part of purchasing the software, it'd be an entirely different story.

But as an individual I can make that judgement myself, I don't have to consider the opinions of others when making my decision.
 
Nobu said:
imho, i purchased a copy of the software (which includes the documentation that comes with it, eulas, etc). If I then agree to an eula or whatever, that is my own business and has nothing to do with the company I purchase the software from, regardless of what the agreement was. If I had signed an agreement and sent that to the lawyers as part of purchasing the software, it'd be an entirely different story.

But as an individual I can make that judgement myself, I don't have to consider the opinions of others when making my decision.
Click to expand...
This statement is just plain factually incorrect. By using the software, you are agreeing to follow the terms of the EULA. Oh wait, you would actually have to read it to know that...
 
dangerouseddy said:
well even some offline games have online drm so your boned once the servers go away for whatever reason unless your lucky and they releases a patch to disable the drm.
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Yep, and this is how i lost my entire pc game collection from 2000s. Years later started installing but none of the keys would verify, hence couldn't run shit... Hence broken, hence i never really owned shit in a practical sense. Its not a good states of affairs, and the guy in the video is 100 percent right, it needs to be clarified in court one way or the other. Game companies been having their lunch and eating it too for too fucking long. So long in fact that to be honest its a reason I welcome standia... Just be done with the fucking charade of 'ownership' already. Preservation, oh well, if the companies that produced them dont care enough to do that, well sad, but oh well.
 
It's the nebulous nature of our current legal system. Politicians pass obscure/unconstitutional laws, judges fail to rule. You either abide by the EULA or pay a fortune in legal fees if you're called out. Funny how it worked out that way.
 
[21CW]killerofall said:
This statement is just plain factually incorrect. By using the software, you are agreeing to follow the terms of the EULA. Oh wait, you would actually have to read it to know that...
Click to expand...
But it's my software, I could just delete or replace the Eula with my own and agree to that. it's entirely unenforceable.
 
[21CW]killerofall said:
This statement is just plain factually incorrect. By using the software, you are agreeing to follow the terms of the EULA. Oh wait, you would actually have to read it to know that...
Click to expand...

But, people can't have agreed to an EULA they haven't read. And it's not reasonable to expect a person to have read a particular EULA: To Read All Of The Privacy Policies You Encounter, You'd Need To Take A Month Off From Work Each Year

And that brings into play the 'reasonable person' test: https://en.wikipedia.org/wiki/Reasonable_person

Further, in many countries EULA simply have no power regardless of what they say because no terms not presented before agreement of a deal are valid - the agreement of the deal being the point of purchase and not the point of installation.

Whenever an EULA claims "this license is non-transferable", that claim is invalid and weakens the EULA as a whole. And whenever an EULA suggests that people don't own their software, that claim is invalid and weakens the EULA as a whole - and this goes for the US, as well: Software being classified as a good in the US means that it undergoes a transfer of ownership at the time of its purchase. And the 2013 Supreme Court's ruling on the first-sale doctrine implies that software in the US is owned, because the first-sale doctrine only applies to stuff that has undergone transfer of ownership because it is a good.

I'm not really aware of EULAs having any precedence of authority outside the US. And even in the US, the authority of EULA has been truncated with the 2013 US Supreme Court ruling that copyrighted goods may be sold without the copyright-holder's permission - affirming the first-sale doctrine trumps any EULA claim.

Also, the US Patents and Trademarks Office classifies all software as goods: https://idm-tmng.uspto.gov/id-master-list-public.html?&status=A&status=M&status=X&status=D&class-valid=true&search-by=any&status-all=All&version=11-2019&search-term=computer+programs,+downloadable


I think that the limited EULA-based victories in the US mostly come down to ignorance of the law on all sides of the cases. By getting the correct information out there and dispelling the many years of corporate propaganda on the topic, things can be changed.
 
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schoolslave said:
Bonus points for not needing "CSAM"s ie. paper-pushers providing no real value.
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My team of about a dozen has saved our company over $150 million over the past 3 years combined. I have personally already saved the company over half a million this year so far. Those numbers don't even include cost avoidance (savings = not using planned $, avoidance = savings that was not in the plan). You funny.
 
"You own the software you buy"

Sounds good in theory, but when a company can stop supporting it at any time, as in shut down the DRM server that lets you actually use your software, or revoke your software key, then for all practical purposes, you don't own shit.

Cloud based subscription services are sooo handy. your files are available anywhere! anytime! and we really don't want to support standalone software, because you can't fleece people for years instead of a one time purchase. Adobe is a prime example of this, I swore I would never subscribe to any of their cloud based services, but being able to use Lightroom CC on any device, even my cellphone to do quick edits is just to damn handy. and my edits applied across all my devices anytime I open lightroom be it on my desktop, laptop during a shoot, tablet while editing pictures or my cell. for $10 a month. forever. until they raise the prices....
 
Delicieuxz said:
That's not true, and is just a myth. EULA terms count for next to nothing (in many countries literally nothing) because they're not laws and corporations don't have the power to make laws or to overrule laws with their EULA terms.
Click to expand...
Exactly, an EULA can only grant additional rights to the user, not take away rights given by law. And as soon as it contradicts effective law it's void and the law takes precedence in my country.
 
motomonkey said:
"You own the software you buy"

Sounds good in theory, but when a company can stop supporting it at any time, as in shut down the DRM server that lets you actually use your software, or revoke your software key, then for all practical purposes, you don't own shit.
Click to expand...

If you purchased a license for a software you own it. Turning off the DRM server interfers with your ability to use the software, it is not support, it is a breach of contract if they do that for owned software. And no commercial software company has done it unless they went out of business, because they damn well know they'd get sued in an instant. Only game publishers think they can get away with it because gamers are powerless, they won'T sue a billion dollar company because their $60 game stopped working. But a company will sue another company when a hundred of their $15.000 licenses stops working because they pulled the plug on the DRM server.

For example Autodesk doesn't even offer stand alone licenses anymore only software as a service. And they are damn pissed at us because we purchased full version copies of their software when it was still available, and they are obligated to make it possible for us to use that software until the end of days if we damn well please. What they are not obligated to do is offer support for the software.
 
From a US Supreme Court verdict featured in Ross' video, here is why EULAs don't count for anything, including in the United States:

https://www.supremecourt.gov/opinions/16pdf/15-1189_ebfj.pdf

"Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product."

"A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. Pp. 5–13. (a) The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention.” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser. Bloomer v. McQuewan, 14 How."
 
dang you deliciousness
I just got temp banned in a steam forum for posting that GaaS video. The ensuing conversation it started also got NUKED.:jawdrop:
I want my money back.;)

Thanks for sharing it.
 
Jim Kim said:
dang you deliciousness
I just got temp banned in a steam forum for posting that GaaS video. The ensuing conversation it started also got NUKED.:jawdrop:
I want my money back.;)

Thanks for sharing it.
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Dafuk?
I would have thought Steam would be interested
being that they allegedly have ' measures in place' so you don't lose access ' to your games'.. Et tu full of shit Steam?
 
Uvaman2 said:
Dafuk?
I would have thought Steam would be interested
being that they allegedly have ' measures in place' so you don't lose access ' to your games'.. Et tu full of shit Steam?
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Well I did post it in a Half Life mod forum and since Scott does the Half Life Freeman's Mind/Civil Protection series I thought it would be safe. But alas, I overstepped herr ÜberGABENprotokoll and the little steam moderator minions pounced.
 
Delicieuxz said:
From a US Supreme Court verdict featured in Ross' video, here is why EULAs don't count for anything, including in the United States:

https://www.supremecourt.gov/opinions/16pdf/15-1189_ebfj.pdf

"Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product."

"A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. Pp. 5–13. (a) The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention.” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser. Bloomer v. McQuewan, 14 How."
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Do not confuse patent law with contract law.
The ruling in the above PDF specifically distinguishes between patent and contract law and says that contract law can still be enforceable.
All the ruling says is that Lexmark could not sue under patent law since it no longer applies to the products in the lawsuit since they were sold and thus "extinguished" from patent law protection by the very nature of the fact that they were sold.
Nothing in the ruling has anything to do with whether or not an EULA is enforceable or not.

From the above PDF (bold emphasis added by me):
A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell.
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And:
If the patentee negotiates a contract restricting the purchaser’s right to use or resell the item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit.
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It's a well known fact that you own your digital media. But publishers didn't like the fact that pirates were stealing their work, and so they pushed for the DMCA.

You can no-longer legally reverse-engineer someone's encrypted content protections, except for the exceptions they've added for abandoned software.

While we do legally keep with the treaty for unprotected works, for everything else the local law overrides the treaty. Unfortunately, I don't think you can take them to court over such a humongous legal loophole.
 
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They should make games so a private guy could host too, like in the good old days.
Not least as since then private bandwidth have gone up a lot,,,,,, well at least for some of us.
Now i will admit due to my poor upload not even 10 % of my 1 gbit download i could probably not host whatever i choose to ( dunno of server side demands have gone up too )
But in the old days i could host a game fine on a 20 mbit connection, just couldn't not use my computer meanwhile as the game was not on a dedicated server but rather my private computer.
but when i get true 1 gbit on fiber i would not mind hosting a game i like to play, that is it don't demand me running some bad ass power hungry server, cuz power are also not cheap here in Denmark.
but say i could use my old 4 core I7 computer with 32 GB ram for a server hosting a game i like to play, i might be able to do that, at least until i see the spike in my power bill.
Then again again one could maybe finance that additional power cost by a patron system or something like that.
 
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