Copy protections: Be aware of our legal rights

vbimport

#1

I was reading a good post by some guy at a games forum - actually Neverwinter Nights - about how companies are in intentional breach of contract by putting copy protections on a product when the consumer is allowed to make copies of a CD for backup or archival purposes. The game isn’t so important as the legal issue that consumer rights are being walked over by companies because of their exploitation of the ignorance and apathy of consumers, i.e. us. We all know it isn’t just one game (or audio, for that matter) producer that does this…just about all of them do.

As many people have posted on this forum, the copy protection of the SoU cd keeps us from making any copies of the disk. However, according to the End User License Agreement, a binding contractual document, purchasers have the right to create a copy for backup or archival purposes. This is a right that purchasers have paid for, and Atari/Bioware (whoever is responsible for the protection software that prevents us from exercising it–I realize that the two companies are separate) is frustrating our reasonable expectations and is therefore in breach of the contract. Combined with: 1. the history of defective CDs; 2. the fact that NWN and SoU are games which we reasonably expect to enjoy for a long (indefinite) period of time (as evidenced by the highly touted–and excellent–Aurora Toolset); and 3. the Atari policy that limits replacing defective disks to a period of 90 days, Atari/Bioware face substantial potential liability. Under one theory they might be liable to all purchasers of SoU for the difference in value between the game we paid for (one that we could back up and therefore enjoy indefinitely) and the game we actually got (one with a potential expiration date of 90 days after the purchase date). They are CERTAINLY liable to any purchasers whose disks break (whether as the result of a defect or even of user carelessness) after the 90 day replacement period is up, since they prevented users from enjoying their contractual right to create a backup. Seriously. If you are a purchaser and your disk breaks or gets a scratch or quits being usable for any reason after the 90-day period has expired, DO NOT TAKE NO FOR AN ANSWER. You purchased the right to make a backup copy, but they intentionally frustrated your ability to exercise that right. This is a BREACH OF CONTRACT.

To Atari/Bioware (I’m guessing the culprit here is Atari), I would offer the following free, semi-competent, legal advice. Either 1. abandon the 90 day policy and accept the obligation to provide replacement copies of NWN/SoU AT NO COST for purchasers whose CDs stop working or 2. make 1 free, non-copy-protected copy available to every current owner (without, of course, providing an additional CD key). Under the second course of action, you could keep the 90 day policy (at least for those who received a non-protected version) since owners would then bear the cost of their failure to make a back up their game. As it stands now, Atari/Bioware (once again, probably Atari) is KNOWINGLY PREVENTING owners from exercizing their contractual right to protect their own expectations, and will therefore bear the costs should the original disk quit working.

I realize that many consumers (probably especially consumers of videogames, who tend to be young) are ignorant of their contractual rights, and that few are likely to pursue those rights in court. Still, a class-action lawyer would probably have little trouble getting together enough people to make it worth while, especially if she were able to successfully pursue the first theory of liability that I described above. If the culprit is indeed Atari, rather than Bioware, and if Atari has a general policy of frustrating consumers’ contractually conferred right to protect their software investments, then this should be even easier, since there is no reason such a suit would be limited to NWN or SoU. Of course, that might mean that this forum is the wrong place to post legal advice. But since I’m not actually sure who added the copy protection, and since Bioware is at least tangentially affected by this policy, and most of all since this is the forum where disgruntled SoU owners are most likely to be found, I thought I would go ahead and post it anyway.

Originally posted by ellonaias at:
Bioware forums (Above text is a copy and paste of that post - link provided for your reference)


#2

Yes, of course we have the right to make a single backup, and it is a fact that software distributors prevent us from doing so by using copy protection. Now we can excercise our rights to a backup in most cases by using special software and hardware which is capable of duplication the cd’s, but according to the DMCA it is illegal to circumvent the copy protection. IMO all that software companies need to to is include two of any disc in the package. Thus we have our backup and we can’t complain about the copy protection. It would also be a nice step to provide us with free copies if our backup and original get scratched, but if that happens then maybe we shouldn’t be using computers.


#3

thats what i think too they should supply 2 copies in the one package one for archival purposes and one to use even if the one to use is just a cd rom to be able to play a game or use any other software without the use of the original so you could keep it in a safe place.


#4

What happens if the original and the original backup get broken? :eek: What if I am a very clumsy person and break the CDs? Seems like discrimination against poor, clumsy people who already have enough bad luck on their hands.

When you pay for the game you pay for the right to use it indefinitely. Which means that you should be able to copy it without hindrance for your own purposes. If your backup set #1 fails, then you would still be within your rights to make another backup set because your first one, for all intents and purposes, does not exist. If the EULA states that you can only use the game or listen to the music for (say) 120 days after purchase, then it is a different matter - 2 copies should more than suffice in most cases.

Also, the software/audio companies will never supply you with 2 copies. Judging from the paranoid way they see it, they will probably think it is just giving a free copy to another person…i.e. active promotion of piracy on their part.

Them sending you replacement CDs is also prone to abuse against them. If I were a competitor company and wanted to ruin a rival company, if my rival was legally bound to replace damaged CDs at their own cost, I’d just buy 10k copies from them, continually ‘accidentally’ damage them and ask for replacements.


#5

well if you are that stupid to break 2 copies and not back one up when the first breaks then you deserve what you get honestly


#6

Previous discussions on this subject:

[ul]
[li]Lawmaker: Is CD copy-protection illegal?
[/li][li]Legality of downloading
[/li][li]Is it ILLEGAL to make a backup of ANY Software in the UK?
[/li][li]Law in the US
[/li][/ul]

Interesting other links:

[ul]
[li]Lawmaker: Is CD copy-protection illegal?
[/li][li]A brief intro to copyright
[/li][li]10 Big Myths about copyright explained
[/li][li]A brief intro to copyright
[/li][li]Lawmaker renews anti-copying criticism
[/li][li]Lawmaker: Legalize home CD burning
[/li][/ul]


#7

Wow, that sounds nice, 2 original CDs in a box. Hey, maybe they can put 2 serial numbers in there in case some idiot looses one…

It’s not gonna happen people, so stop dreaming. Everybody’s evil and you know damn well they are gonna sell the 2nd copy on ebay, meanwhile logging onto CDFreaks asking, "How do I backup “title of game.”


#8

Originally posted by Stoner
[B]Wow, that sounds nice, 2 original CDs in a box. Hey, maybe they can put 2 serial numbers in there in case some idiot looses one…

It’s not gonna happen people, so stop dreaming. Everybody’s evil and you know damn well they are gonna sell the 2nd copy on ebay, meanwhile logging onto CDFreaks asking, "How do I backup “title of game.” [/B]

I dont think there should be 2 original cd’s in a package as I said, I think a better idea is to have an original cd and another cd just to be able to run the game(program) without using the original(eg with files only needed to run it like music and so on).

ps im in the process of designing my own game right now, sure my first one wont be a killer but if all goes well in the future this is exactly what i will be doing.


#9

Some interesting ideas there but, of course, the original premise is nonsense in legal terms.

In almost all countries, you are permitted to make a copy of any program for which you have a licence for back-up purposes (provided that you do not modify the program in doing so and provided that the copy is made from a licensed original or from a non-infringing copy with the permission of the licence holder).

However, the fact that you are permitted to make a copy does not mean that the copyright holder is obliged to make it easy or even possible for you to do so (did anyone mention starforce 3?).

Further, the “right” (it isn’t really a right but a privilege) in many countries only applies to programs and not to copyright music or movies (Australia and the United Kindom e.g. are countries where, strictly speaking, all rips and copies of copyright music and movies are illegal).


#10

Originally posted by philamber

However, the fact that you are permitted to make a copy does not mean that the copyright holder is obliged to make it easy or even possible for you to do so (did anyone mention starforce 3?).

This argument seems a bit strange. If it is true, then can I be charged with murder if I do not kill someone by taking a direct offensive move against them but make it as difficult as possible for the person to live?

For example, say some poor guy I want to kill comes to my house. I fill my house with lots of hazardous accidents waiting to happen, like loose floorboards, cyanide in the same sink used to wash dishes, puddles of water with live wiring lying around, etc. When he dies, and I am accused of murder, I just say “I didn’t kill him, officer, but I didn’t make it easy for him to live either.” :confused::confused::confused::confused::confused::confused:

Secondly, although the law did not state that they have to make it easy or even possible to copy, it also did not state that they had to make it hard for us.


#11

What happens when you buy a game (and, I assume, when you listen to music) is you don’t buy it. You buy a right to use it, on whatever terms the publisher says. If they say that by buying you agree not to make any copies, you agree to it when you accept the liscence.

Originally posted by Tyro

For example, say some poor guy I want to kill comes to my house. I fill my house with lots of hazardous accidents waiting to happen, like loose floorboards, cyanide in the same sink used to wash dishes, puddles of water with live wiring lying around, etc. When he dies, and I am accused of murder, I just say “I didn’t kill him, officer, but I didn’t make it easy for him to live either.” :confused::confused::confused::confused::confused::confused:

But there is a difference in who control’s whose rights to what. They have control over your right to listen to their music or play their games. They do not have control over your right to remain alive.


#12

Originally posted by SirDavidGuy
They do not have control over your right to remain alive.

They’re pretty close though


#13

Originally posted by Tyro
This argument seems a bit strange. If it is true, then can I be charged with murder if I do not kill someone by taking a direct offensive move against them but make it as difficult as possible for the person to live?

A. It’s not an argument; it is the law. Further, the laws of most countries provide that the exception doesn’t apply where the program is so designed that it cannot be copied without modification.

B. You have it backwards. You are not permitted to kill another person deliberately or by performing acts that you realise are likely to kill someone even if you do not actually intend to do so. There is, however, an exception if you do so in self-defence. Similarly, you are not permitted to copy any copyright work. However, there is an exception if you do so for back-up purposes of a program (and in some countries of cd music and cd/dvd movies).

Secondly, although the law did not state that they have to make it easy or even possible to copy, it also did not state that they had to make it hard for us.

The law permits them to make it as hard as they like. It’s their copyright.


#14

Originally posted by SirDavidGuy
What happens when you buy a game (and, I assume, when you listen to music) is you don’t buy it. You buy a right to use it, on whatever terms the publisher says. If they say that by buying you agree not to make any copies, you agree to it when you accept the liscence.

They should post the license agreements on the outside of the box. Or the law should force retailers to accept opened boxes if I disagree with the licence agreement and it is in a file on the CD and not visible before purchase.

Many retailers (especially online ones) will not accept returns once you open the box. It sucks that I do not know exactly what I am paying for until it is too late, and by then, I can’t ask for my money back.


#15

My reply is not so much about the legality of copy protections, my legfal knowledge is too limited for that and I will gladly leave that part of the discussion up to philamber or Tax.

Who is it that complains the most about these copy protections? I buy almost all my music and CD-ROMs. Copy protections only bother me when they won’t allow me to play the audio cd on my computer, because at work I now and then like to put a CD in my drive so I have some background music.

I think that those who complain the most are those who have most to lose by these copy protections. Although there are no doubt a lot of people who have legitimate reasons to back their stuff up (little children, heavy use or other circumstances), but let’s be honest here, most people who come here and ask questions about backing up and complain most are those who most of the time do not have the original and thus do not have the right to speak in this matter…

I have seen many questions on this forum over the years. The difference between the old days and the ‘new’ days is that people have learned to formulate their questions more carefully and thus avoid stating what most of us know anyway, that they are illegally trying to backup stuff…and often causing the mods here a headache because of testing the boundries (I must say that the mods do a great job at keeping this forum as clean as possible and do so in a fair way).

Above statements do not apply to all users, it would not be fair to say so. However, I do think that they apply to those who complain most about copy protections. And of course there are organisations who jump on the bandwagon for their personal glory and media attention, all in the name of justice.

Finally, instead of attacking those who try to protect their property we should attack those who insist on violating this. For example, we should not attack lock makers for their steep prices, but the burglars who make it necessary to buy these locks to preotect our own property…


#16

Just another thought to throw into the pot:

Some people seem to be missing the point that you are buying the right to use the software, be it a game or some other app, not the software itself (it would cost millions for the full rights to a game like Half Life 2). The CD or whatever is just a convenient delivery medium, the right to make a backup just a practical answer to the fact that there’s no indestructible media out there.

Currently you are fairly free to do whatever you like with your software, in practical terms. The day is coming when your license will be tracked, real-time, and the only ones with pirated software will be the uber-hackers living outside of normal society. Don’t believe me? We’re a year away from having smart-transmitter-chips the size of a pinhead on packaging, that can be tracked wirelessly. If the global entertainment corporations see piracy as a major threat (they’re just coming around to that idea) they WILL stop it.

A little conspiracy-minded, n’est pas?


#17

Originally posted by Smart@$$
[B]
Who is it that complains the most about these copy protections? I buy almost all my music and CD-ROMs. Copy protections only bother me when they won’t allow me to play the audio cd on my computer, because at work I now and then like to put a CD in my drive so I have some background music.

I think that those who complain the most are those who have most to lose by these copy protections. Although there are no doubt a lot of people who have legitimate reasons to back their stuff up (little children, heavy use or other circumstances), but let’s be honest here, most people who come here and ask questions about backing up and complain most are those who most of the time do not have the original and thus do not have the right to speak in this matter…[/B]

The assertion that “those who complain the most are those who have most to lose by these copy protections.” is mind-bogglingly absurd. Non-smokers complain the most about smokers. The only ‘loss’ they may suffer from smokers is cancer from 2nd hand smoke. Smokers have the most to ‘lose’ by smoking: cancer and lung problems from firsthand smoke, nicotine addiction, yellow teeth and bad breath. Who complains more about smoking?

Another flaw in your assertion that "“those who complain the most are those who have most to lose by these copy protections.” is it assumes people will all act proportionately according to an irritant stimuli. They don’t. People all will respond to problems differently. Go to the subway and call some random person an asshole. Person 1 may just walk away, person 2 may just call you an asshole back and person 3 may get into a fight with you.

The explanation for my 2nd point is this: people like you don’t mind that some companies walk all over your rights or respectability as a paying customer. Thats alright - for you. But it is not alright for me. I don’t like to be walked over.

I legitimately buy my products. I really only got involved in trying to defeat copy protections when my LEGITIMATE copy of an old but good game, System Shock 2, broke. The inner hub of the CD developed a radial crack that grew until the disc was unreadable. As you may know, the company responsible for that game went belly up ages ago. I was not able to play that game any more, even though I had a legitimate copy. Sidenote: I eventually had to buy a SECOND original copy of the game through ebay. It sucks to have to pay twice for the same game.

All of this could have been prevented if I was playing from a backup instead. After that bad incident, I have since become interested in playing all my games from backups while the original is safely tucked away.

Originally posted by Smart@$$

I have seen many questions on this forum over the years. The difference between the old days and the ‘new’ days is that people have learned to formulate their questions more carefully and thus avoid stating what most of us know anyway, that they are illegally trying to backup stuff…and often causing the mods here a headache because of testing the boundries (I must say that the mods do a great job at keeping this forum as clean as possible and do so in a fair way).

This assumption is a sickening over-generalisation. What proof do you have to back up your claims? Nothing. You just make some bald statements to back up your argument with no proof of the matter. I for one, back up my music CDs that I legitimately bought so that I can play them on my Discman. If it gets scratched, no big deal. Sure, some people may be using this forum to break the law, but as long as we take reasonable steps to prevent this -such as enforcing the rules against blatant cases, there is not much more to be done.

You can not punish everyone else just because of a few errant users.

Originally posted by Smart@$$

Finally, instead of attacking those who try to protect their property we should attack those who insist on violating this. For example, we should not attack lock makers for their steep prices, but the burglars who make it necessary to buy these locks to preotect our own property…

The companies trying to defend their intellectual properties may do whatever that want to protect it - until it starts affecting my freedoms, rights and dignity as a customer.


#18

what do you think of the new laws in austria and germany, prohibiting copying of copy protected discs not even for personal use…
clonecd, alcohol, blindwrite etc. is all illegal!!!
i hate that…
but i don’t think this will keep me from backing up my 50€ worth games…
wot u think?
:bigsmile: