CD Projekt Red ask Nexus Mods to remove Keanu Reeves sex mod - but issue a misleading statement as to why

[WereCatf]

5 minutes ago, Master Disaster said:

Except that they do have that power. Johnny Silverhand is their copyrighted character, if they don't want him involved in sex scenes then the law is very much on their side

Depends, actually. If the sex-scenes exist in the mod itself, then yes, but if the mod only modifies the game-files without distributing any of CDPR's copyrighted content, then no.

 

Distributing instructions on how to modify copyrighted content is not the same thing as distributing copyrighted content, even if those instructions were in the form of a fully-automated binary.

[Delicieuxz]

23 minutes ago, Master Disaster said:

Unless the purchaser is making illegal copies of said product or is, in any way, profiting from the work done by CDPR.

 

Ownership =/= Copyright.

 

They're not telling anyone they cannot install mods, their not even saying people cannot install this mod. They're asking the mod developer (nicely) to not enable & distribute a method to use their work in a way which they don't want it to be used.

The point is that that's not what CDPR did. They didn't go after the mod on copyright grounds, but instead cited a rule they've written on their website regarding user-generated content.

 

As the thread title and OP say, the reasoning CDPR used for going after the mod is what's problematic. If they had said they were protecting their copyright, I wouldn't have made this thread. But because they said they removed the mod because it violates an arbitrary, non-lawful rule they've asserted on their website regarding guidelines for fan-made content, the action represents a dangerous precedent.

 

CDPR legally don't have the power they claimed to employ to remove this mod. Maybe you're OK with it in this case because it's CDPR and you don't particularly care for the mod. But if EA, Ubisoft, or ActiVision start removing games from people's accounts because people modded their offline game in some way they say contravenes an arbitrary rule they decided upon, what would you say then? You couldn't argue against it if everyone decided now that a publisher actually gets to control the usage of a game they have sold.

 

Copyright allows the copyright-holder to control the making of copies of a work. It doesn't allow them to control how a work they've sold may be use. In this case, copies of CP 2077 that are sold to people are one-off instances that can't be duplicated by those who own the copies. But the usage of their copies isn't controlled by the publisher which sold those copies to people.

 

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Right but if you decided to take one of the copyrighted components from a Toyota, modify to fit a ford and then try to sell it on the internet you bet your ass Toyota would have the lawyers on leash in the blink of an eye.

You actually can do that just fine, and Toyota has no say in the matter.

 

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No, CDPR created the character "Johnny Siverhand", they drew the art for him and they made the game he is used in. CDPR is acting, perfectly legally, under existing copyright statutes.

That seems to ignore what you're responding to, which is this:

 

"The people who've purchased copies of CP 2077 own those copies of the game and, as people are allowed to do with their personal property, may modify them per their sole discretion. Actual laws, like copyright and personality rights still apply, but CDPR didn't choose to act on those grounds but outside of them, and that's what's concerning."

 

That CDPR could have acted on copyright grounds hasn't been disputed. It's the fact that they stated for themselves that they acted on grounds other than copyright grounds, and that the grounds CDPR stated for themselves they acted upon aren't legal powers that CDPR possesses, which is the problem and concern.

 

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Except that they do have that power. Johnny Silverhand is their copyrighted character, if they don't want him involved in sex scenes then the law is very much on their side.

No, they don't posses the power in question, which isn't a power of copyright, but is a power of ownership and control over sold copies of the game.

 

CDPR don't possess a power to be able to dictate and control people's usage and modification of their games in general.

 

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Again, a copyright holder has the power to allow or restrict the use of their work however they choose to. Can they stop you from doing what you want to your own game? Almost certainly not, even if that were covered by law its almost impossible to enforce. Can they stop you from distributing a mod that contains their copyright content? Absofuckinglutely yes they can.

No, they don't. Copyright doesn't grant copyright-holders power to control copies which have been sold to other people. Copyright grants the copyright-holder the exclusive right to create copies of a work.

 

https://www.law.cornell.edu/uscode/text/17/106

 

In this thread and in the OP, we're, or I'm, not talking about making copies of a copyright work or distribution of a copyrighted work. I never have been, and the OP doesn't talk about distribution of a copyrighted work. The OP says there are legitimate grounds which the mod could have gone after on - but CDPR, in their statement as to why they sought the mod's removal, made it clear they didn't go after it on a legitimate ground, but on an arbitrary one that doesn't reflect a power or legal right which CDPR actually possesses.

 

The issue I've raised in the OP and talked about in the thread isn't a copyright issue but is about CDPR claiming to have the ability to decide whether and how people may modify the game-copies which people have purchased and own and possess full property rights over.

[elderago]

folk your  making a huge DEAL over nothing
the mod allowed people to switch models of cars as well as  npc's  it also allowed people to toggle between different bodies and heads, which means that people could use say keanu reaves likens on a sexually suggestive model. this could cause problems with cd project and  their contracts with actors, all they did was kindly ask the mod producer to take the separate part of the mod that edited keanu reeves down. that is all, they  did not issue a dmca  or a take down notice. the mod other CHOSE to take the whole mod down.

finally they are not being misleading  the public they are telling you why they did this. they still are perfectly fine with modding  the game. also they disabled console commends  as it messed up error reporting  and they are trying to fix the issues with the game

[Delicieuxz]

On 1/29/2021 at 8:41 AM, elderago said:

folk your  making a huge over nothing
the mod allowed people to switch models of cars as well as  npc's  it also allowed people to toggle between different bodies and heads, which means that people could use say keanu reaves likens on a sexually suggestive model. this could cauise problems with cd project and  their contracts with actors, all they did was kindly ask the mod producer to take the seperate part of the mod that edited keanu reeves down. that didnt issue a dmca  or a take down notice. the mod other CHOSE to take the whole mod down.

they arent being misleading they are telling you why they did this. they still are perfectly fine with modding  the game.

CDPR's claim of why they sought the removal of the mod is misleading because it implies that CDPR possess a legal power and right that they don't.

 

Removing the mod on copyright grounds would be just fine (though, Fair Use should apply). Removing the mod on grounds of using Reeves' likeness without his permission would be just fine. Removing the mod because CDPR claim they have personal rules about what kind of mods people can make and use is not fine - CDPR have no say in how people choose to modify their personal property. Copyright law has a say, personality rights have a say, but CDPR doesn't have an arbitrary say outside of what the laws say.

 

 

You know that meme, 'This is why we can't have nice things'? The reason we can't have nice things is because people don't understand what a situation means and what their positions and actions enable and justify.

 

If CDPR were justified in their reasoning for why they sought the removal of this mod, then it means that a publisher continues to possess decision-making authority over the software you've purchased, and so the publisher holds ownership rights over that software instance and you don't. It means that a publisher can revoke your games from your accounts anytime they wish for any reason they like or for no reason at all.

 

So, say if Valve create Steamyacht in ten years and, like their other Steam-X experiments, it's a bust and it causes the company to go bankrupt, the difference between CDPR being justified in their reasoning here and CDPR not being justified in their reasoning here will decide whether you get to keep your games when Steam shuts-down.

 

If CDPR are justified in their reasoning, then it means that publishers retain control over copies of games they've elected to sell, and can just cancel all game licenses associated with Steam and not be liable to any of the people who purchased those games. That will be that, you didn't own your games and so you aren't owed or entitled to anything, and now you'll never get to play hundreds of titles you owned ever again, won't get to revisit them in 30 years for nostalgia and memories, won't get to show them to your kids, grandkids, etc.

 

But if CDPR aren't justified in their reasoning, because they don't have control over copies of games they've sold, then simply shutting-down Steam with no backup-plan would incur severe loss to the people who owned games through the Steam platform and would unjustly rob people who own those games of access to and use of their properties. So, it would be justified to create a system in-which people would continue to be able to access and use their purchased-and-owned games, such as a universal ownership ledger like as the one proposed by Tim Sweeney and, ironically, GoG, which would enable people to download their owned games (and other digital goods) from a variety of places that aren't dependent upon one service.

 

 

Why people advocate against their interests and for their own failure and loss, and for that of overall society, I don't know. How you get to gaming dystopia is by justifying wrongful actions when they occur because you favour who's committing them or agree with the immediate outcome. Because if a certain improper action or claim of a right is justified now, then the same action or claim of a right will be established as justified when someone you don't like uses the same power to do something you don't agree with.

[Master Disaster]

43 minutes ago, Delicieuxz said:

The point is that that's not what CDPR did. They didn't go after the mod on copyright grounds, but instead cited a rule they've written on their website regarding user-generated content.

 

As the thread title and OP say, the reasoning CDPR used for going after the mod is what's problematic. If they had said they were protecting their copyright, I wouldn't have made this thread. But because they said they removed the mod because it violates an arbitrary, non-lawful rule they've asserted on their website regarding guidelines for fan-made content, the action represents a dangerous precedent.

They're literally the same thing though. Then can make that rule a thing because copyright law allows them to.

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CDPR legally don't have the power they claimed to employ to remove this mod. Maybe you're OK with it in this case because it's CDPR and you don't particularly care for the mod. But if EA, Ubisoft, or ActiVision start removing games from people's accounts because people modded their offline game in some way they say contravenes an arbitrary rule they decided upon, what would you say then? You couldn't argue against it if everyone decided now that a publisher actually gets to control the usage of a game they have sold.

See above, yes they do (at least the power to stop the mod), removal of games from your account is a different matter and also not the topic of this thread.

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Copyright allows the copyright-holder to control the making of copies of a work. It doesn't allow them to control how a work they've sold may be use. In this case, copies of CP 2077 that are sold to people are one-off instances that can't be duplicated by those who own the copies. But the usage of their copies isn't controlled by the publisher which sold those copies to people.

Actually it does. Haven't you ever seen the "This product cannot be viewed by more than x people at a time" warnings on the back of DVDs/Blu Rays? Again CDPR is not controlling the usage of your software, they're telling one modder he cannot use their work.

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You actually can do that just fine, and Toyota has no say in the matter.

Hmmm, tell that to all Louis Rossmans friends who regularly get genuine refurbished Apple screens and cables seized by the US ICE dept.

 

If the item you are modifying and then reselling is covered by a patent you have no legal entitlement to profit from it in any way.

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That seems to ignore what you're responding to, which is this:

 

"The people who've purchased copies of CP 2077 own those copies of the game and, as people are allowed to do with their personal property, may modify them per their sole discretion. Actual laws, like copyright and personality rights still apply, but CDPR didn't choose to act on those grounds but outside of them, and that's what's concerning."

 

That CDPR could have acted on copyright grounds hasn't been disputed. It's the fact that they stated for themselves that they acted on grounds other than copyright grounds, and that the grounds CDPR stated for themselves they acted upon aren't legal powers that CDPR possesses, which is the problem and concern.

CDPR did act on copyright grounds, you just don't seem to be able to make the connection.

 

The modder used their character in a way they didn't like so they politely asked him not to and he obeyed. Just because they didn't shout copyright from the rafters doesn't mean its not still copyright.

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No, they don't posses the power in question, which isn't a power of copyright, but is a power of ownership and control over sold copies of the game.

 

CDPR don't possess a power to be able to dictate and control people's usage and modification of their games in general.

But they do have the power to stop someone from using their character in a way they don't want.

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No, they don't. Copyright doesn't grant copyright-holders power to control copies which have been sold to other people. Copyright grants the copyright-holder the exclusive right to create copies of a work.

 

https://www.law.cornell.edu/uscode/text/17/106

So the mod isn't an unauthorised usage of their work then?

 

I'll quote your link...

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Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1)

to reproduce the copyrighted work in copies or phonorecords;

(2)

to prepare derivative works based upon the copyrighted work;

(3)

to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4)

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5)

in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6)

in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

[Delicieuxz]

4 hours ago, Master Disaster said:

They're literally the same thing though. Then can make that rule a thing because copyright law allows them to.

No, copyright law doesn't allow that.

 

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See above, yes they do (at least the power to stop the mod), removal of games from your account is a different matter and also not the topic of this thread.

Removal of a game from your account is based on the idea that the publisher retains control over a copy they have elected to sell and can exercise their discretion over how and whether people are allowed to use the copy. CDPR's reasoning for going after the mod was based on the same idea.

 

Copyright law doesn't grant that power to copyright-holders - and CDPR didn't go after the mod on copyright grounds but on grounds of the mod violating an arbitrary rule of CDPR's, in the context of the mod using Reeves' likeness. And usage of a person's likeness isn't a matter of copyright but of personality rights.

 

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Actually it does. Haven't you ever seen the "This product cannot be viewed by more than x people at a time" warnings on the back of DVDs/Blu Rays? Again CDPR is not controlling the usage of your software, they're telling one modder he cannot use their work.

No, I haven't seen that message. Could you show me one? Regardless, copyright doesn't allow a person to control the usage of an item which has been sold.

 

What's said here by the US Supreme Court regarding patent law is perfectly analogous to copyright law:

 

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

 

"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."

 

 

Regarding what CDPR did, what you summed it up as is not the case, and this is what you're not getting. CDPR appealed to an arbitrary rule they've written in their fan-content guideline document:

 

"Our most important rule regarding user-generated content, game mods in particular, is that it can’t be harmful towards others. In the case of model swaps, especially those that involve explicit situations, it can be perceived as such by the people who lent us their appearance for the purpose of creating characters in Cyberpunk 2077."

 

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Hmmm, tell that to all Louis Rossmans friends who regularly get genuine refurbished Apple screens and cables seized by the US ICE dept.

That's the case where Apple sued him alleging he was selling counterfeit goods, but lost.

 

Edit: I initially referenced the wrong case. But both the one I initially referenced and the correct one regarding Louis Rossman are trademark / counterfeit cases and not copyright cases:

 

Rossman's case is regarding alleged counterfeit items based on a trademark claim by Apple over appearance of something resembling their logo. It's not a copyright case.

 

DHS Seized Aftermarket Apple Laptop Batteries From Independent Repair Expert Louis Rossman

 

 

This is the case I initially referenced:

 

Apple Is Still Trying to Sue the Owner of an Independent iPhone Repair Shop

 

"In April 2018, the court decided that because the logos were not visible, Apple's trademark hadn't been violated, and Huseby won the case."

 

Apple has appealed, but Apple hasn't won. And his case is concerning what Apple alleges to be counterfeit goods based on the replacement screen bearing Apple's trademarked logo (which is not visible when the screens are installed). It isn't a copyright case.

 

Also, when a person owns an OEM car-part and modifies it to retrofit it into another vehicle, they haven't created a new copy of the item. The one instance of that part remains the one instance of the part, and so the retrofitted part doesn't gain any copyright-violating properties by being in another vehicle. The person who owned the original instance of that part is allowed to sell their instance of that part, which is what they would be doing in the situation you have described.

 

Check-out the massive aftermarket car-part industry, including all the 'perfect fit' replacements which are 1:1 replicas of the OEM parts they're based on. Those parts aren't dependent upon being permitted by OEM manufacturers.

 

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If the item you are modifying and then reselling is covered by a patent you have no legal entitlement to profit from it in any way.

We're not talking about patents or profiting from someone-else's work. But you are entitled to modify and then resell something that contains patented technology in it, and you are allowed to profit from reselling works that contain patented technology in them. The Apple case is about trademark, not patent or copyright law.

 

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CDPR did act on copyright grounds, you just don't seem to be able to make the connection.

No, CDPR didn't act on copyright grounds, or other legitimate grounds. That's the issue here. They acted on a claim of holding an arbitrary power to control usage of a copy after it has been sold. See their own words again here:

 

"Our most important rule regarding user-generated content, game mods in particular, is that it can’t be harmful towards others. In the case of model swaps, especially those that involve explicit situations, it can be perceived as such by the people who lent us their appearance for the purpose of creating characters in Cyberpunk 2077."

 

There's not mention of copyright in that statement. And protecting the likeness of a person isn't a matter of copyright but of personality rights.

 

A CDPR rule on user-generated content, stated in their fan-content guidelines, doesn't come into things. Copyright and personality rights apply, CDPR's rule doesn't.

 

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The modder used their character in a way they didn't like so they politely asked him not to and he obeyed. Just because they didn't shout copyright from the rafters doesn't mean its not still copyright.

You're conceding that you have no basis for your hypothesis that, despite CDPR making a statement that they pursued the removal of the mod relating to a CDPR rule, that they actually intended it to be a copyright issue.

 

CDPR's statement says the removal is based on their rule and Keanu Reeves' likeness - neither of which are matters of copyright.

 

And, as the thread title and the OP make clear, the issue is not the removal of the mod or the protection of legitimate interests, but is CDPR's statement on why it was done, which is misleading in that it suggests that CDPR have a legal right and power which they flat-out don't. And so, if people take that statement at its word, they will be mislead into discretely losing empowerment of their rights over their purchased games.

 

Here's the thread title: CD Projekt Red ask Nexus Mods to remove Keanu Reeves sex mod - but issue a misleading statement as to why

 

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But they do have the power to stop someone from using their character in a way they don't want.

For the umpteenth time, that's not the grounds CDPR went after the mod for. They went after it for its violation of a CDPR rule, and on the basis that the mod depicts Reeves - neither of which are about Johnny Silverhand and neither of which are copyright issues.

 

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So the mod isn't an unauthorised usage of their work then?

For the umpteenth time, that's not the grounds CDPR went after the mod for. They went after it for its violation of a CDPR rule, and on the basis that the mod depicts Reeves - neither of which are about Johnny Silverhand and neither of which are copyright issues.

[Delicieuxz]

7 hours ago, Space5000 said:

Apologize if my message here is off-topic, but it seems really hypocritical for a company that claims to be about ownership would not only have a restricting EULA threatening to take the license away depending on how the EULA is handled after "purchase" (I even maybe remember asking the legal team if it would be illegal after license is gone, and they answered that it was if I'm remembered correctly.), but it's one of those EULAs that say "revocable" for license, and that they say they can change the terms for a very broad and likely subjective reason ("if we think it is necessary"). Hopefully there is court evidence ruling that such two things in the EULA cannot be enforceable, but either way it's really odd that a company that is part of Good Old Games would have this...

That certainly looks on-topic to me, and I think that it is certainly hypocritical of CDPR and I was very surprised when I read CDPR's EULA, because it is diametrically-opposed to what they aim to be in their public statements.

 

The clause that CDPR can revoke a gaming license (which they legally can't do) is in direct contradiction to CD Projekt's self-stated belief and operational philosophy of "You buy it, you own it" - with that operational philosophy being an important justification for DRM-free gaming and why I support their store and business.

 

 

 

Regarding your interest in CDPR's 'revocable license' claim in their EULA, the clause is indeed unenforceable. In fact, CDPR's EULA isn't a legal document. And neither are any of the EULAs for software which you've purchased a copy of because it's not lawful for a publisher to control a copy of a work which they've elected to sell. The sole legal right to dispose of that copy rests with the purchaser.

 

EULAs for software that you've purchased are always ignorable - the conditions of your usage of the software are set in copyright and other laws, and a publisher's extra whims in an EULA count for nothing. But CDPR's EULA in particular is not written in a way that would uphold it as a legal document even if it weren't invalid as a legal document on the basis that it pertains to software which you've purchased and own.

 

Here's what CDPR's EULA says on the subject, emphasis added:

 

"3.1 Licence. CD PROJEKT RED gives you a personal, limited, revocable, non-exclusive, non-transferable and non-assignable licence to display, view, download, install, play and use Cyberpunk 2077 on your personal computer, games console and/or other devices/platforms that are explicitly authorised by CD PROJEKT RED (the list of which is available here), depending on the particular device/system/platform you purchased the game for. This licence is for your personal use only (so you cannot give, ‘sell’, lend, gift, assign, sub-license or otherwise transfer it to someone else) and does not give you any ownership rights in Cyberpunk 2077."

 

 

There are multiple issues with that claim, including ones that would invalidate any contract and prevent it from being a legal contract.

 

First, I'll just put this out there against the claim that people can't sell their CP 2077: EU Court Says, Yes, You Can Resell Your Software, Even If The Software Company Says You Can't

 

BTW, have you seen the hundreds of used copies of CP 2077 for sale on eBay, and the used copies available for sale of every other game that ever claimed people couldn't transfer the license or resell it? People are allowed to resell their property. And this is showing that an EULA counts for nothing when it comes to software that you've purchased.

 

 

Now, regarding the claim in CDPR's EULA that says a right to play the software you've purchased is revocable per CDPR's discretion, that's just not legally enforceable and is what's called an Illusory Promise. And an illusory promise automatically invalidates any contract that is based on one.

 

I mentioned this in a post on the first page of this thread.

 

https://legal-dictionary.thefreedictionary.com/Illusory+Promise

Illusory Promise

A statement that appears to assure a performance and form a contract but, when scrutinized, leaves to the speaker the choice of performance or non-performance, which means that the speaker does not legally bind himself or herself to act.

 

When the provisions of the purported promise render the performance of the person who makes the promise optional or completely within his or her discretion, pleasure, and control, nothing absolute is promised; and the promise is said to be illusory. For example, a court decided that a promise contained in an agreement between a railroad and an iron producer whereby the railroad promised to purchase as much iron as its board of directors might order was illusory and did not form a contract.

 

 

 

 

Except when you're using software you didn't purchase, such as with a free-to-use license, EULAs can be ignored because they aren't legal documents and don't represent contracts.

 

And the information on that is in this post: You own the software that you purchase, and any claims otherwise are urban myth or corporate propaganda

 

What I think happened is that, when software was a new concept, some of the makers of it presumed that they had a completely new paradigm on their hands and could work-out the terms and rules that apply are, and impose them on the purchasers of their software. A trend of EULAs came-about and there was a lot of monkey-see / monkey-do going on with software developers creating their own EULAs and just assuming they work because they see everybody else making them. And in select court cases, software publishers were able to confuse and hoodwink a court into believing there actually is a fundamental difference between software and physical goods, using misleading ideas and terms that the presiding judge wasn't able to wrap their head around.

 

And there's still a ton of monkey-see / monkey-see conduct regarding EULAs and developer / publisher assumptions of what they can do, because the practice has become a cultural habit. And maybe the appearance of EULA-authority attracts some people with a god-complex or who want to feel like they have power and control over others.

 

But the reality is that software is just the same as everything else: It's accessed as either a good or through a service, and software itself is a good. And so, the laws on Goods vs Services apply to software as they do to everything else. And in the most significant cases, and more and more as time goes on, courts are cluing-in to the fact that software isn't actually different at all, and the idea that there was some magic happening with software's existence that only publishers could understand and had to dictate to everybody else has been dissipating and made-up publisher claim after made-up publisher claim has been getting denied.

 

 

 

The only contract involved in a purchase of software is the contract of sale, which occurs when you agree to give money in exchange for a product, the product being the software item you've bought. That contract states that the ownership and property rights over the purchased product transferred from the seller to the purchaser in exchange for money or other compensation to the seller.

 

Just as CD Projekt themselves declare on their game storefront, "You buy it, you own it".

[GhostRoadieBL]

I actually support this move, if your likeness was used for a videogame character and someone decides to change parts of the game to have your likeness do acts you didn't agree to in your contract or intended for your likeness to be used for. 

 

It definitely falls under the "don't be a dick" category for me 

[Space5000]

1 hour ago, GhostRoadieBL said:

I actually support this move, if your likeness was used for a videogame character and someone decides to change parts of the game to have your likeness do acts you didn't agree to in your contract or intended for your likeness to be used for. 

 

It definitely falls under the "don't be a dick" category for me 

If it's against the personality rights, then I can understand (otherwise, it's just flat-out censorship in a sense and isn't much different than the idea of Bethesda going after YouTubers for making a rude parody of one of their characters (not that I've seen it happen, mainly making a point.) for a mod.), but why does CD-PR have to do it? If the mod wasn't part of any official server that CD-PR controls, then shouldn't the responsibility be more akin to the modder instead? And shouldn't it be up to Keanu Reeves to sue the modder? Though I am not familiar with every law so maybe CD-PR would still be responsible under law.

 

I don't believe Google removes Copyrighted material on YouTube out of the assumption that the creators will not like it. I think they likely usually do so whenever the creator themselves take action against it, and such video isn't covered by Copyright limitations, and that the YouTube bots removes any duplication of removed content by default. My guesses could be wrong though.

 

@Delicieuxz

Thank you for your response to my comment on here. I have also been reading a lot of your posts about lawful software too.

Yeah it does seem hypocritical. Maybe if they truly cared about ownership, then maybe (a little ironic maybe) they should change the EULA indicating that the license for the game is not going to be revoked on itself as long as the purchase was legit and promise that the possibility of changing the EULA won't change that.

 

For the unenforcability arguments here, I am usually skeptical about some of your posts as I have seen several courts hold that some forms of EULAs would be enforceable, and even heard that a lawyer on YouTube made this video responding to Accursed Farms's video, and if I'm remembering the video right, there were disturbing parts about private contracts being able to contradict with with certain protection laws, just because of contracts being private. The person did however maybe gave hope for those where it involves not expecting and not knowing certain terms, but that's a much more limited thing (not so helpful for those who are aware of terms before purchasing lawful software I think). Another thing I noticed is that on another thread, you said that a license can be revoked if there was a reason astablished befor first contract (which kinda conflics with some other posts saying that many EULAs are not laws if I'm thinking correctly).

 

For another part of your response I noticed you said that a free license can be revoked, but does that include free licenses that don't even say they are revocable? I asked because there is this fear about open source software licenses being able to be revoked where the terms didn't say irrevocable, but didn't say they were revocable either. There is also more limited software but mainly free (e.g. Unreal Engine?) that I didn't notice any revocablility too, and didn't notice a "change at any time" or similar term for it either.

 

Also if it's alright to ask, what do you think about agreements saying that they can change with a more broad reasoning. Those has a reason in it, but it's very broad at the same time so I became less sure on this topic.

 

I was planning to sending your a private message about some of this topic, but I guess it's here then. Haha

[GhostRoadieBL]

18 minutes ago, Space5000 said:

(otherwise, it's just flat-out censorship in a sense and isn't much different than the idea of Bethesda going after YouTubers for making a rude parody of one of their characters

there is a difference between an invented character and a person's likeness, especially so when games are using more advanced graphics and you can get near to life models of people. 

It is nearer to revenge porn than making a parody of the character

[Space5000]

4 hours ago, GhostRoadieBL said:

there is a difference between an invented character and a person's likeness, especially so when games are using more advanced graphics and you can get near to life models of people. 

It is nearer to revenge porn than making a parody of the character

I don't fully know the laws on revenge porn, I assume it's more about real events but my assumption could be wrong.

A person using a digital textured face based off a real person and making a completely victimless fictional scene with it doesn't sound the same as taking a photograph and/or video about a real event that actually happened, and it's more akin to someone having a fictional fantasy about a real person inside their own head or even someone wearing a mask of a popular person during consensual adult roleplay in private. Creepy? Maybe (but it's subjective), but is it truly victimizing? It doesn't feel like that logically.

 

Did the modder make money off of the person's likeness? I heard that it usually involves commercial usage when it comes to personality rights, but I don't fully know if the law suggests that commercial activity is required. I also heard that publicity rights are limited by the first amendment and assuming this was legal: I've seen a lot of TV shows uses "real people" in many types of parody ways.

If I did assume that the modder was breaking the law, then it's odd that the company having nothing to do with Keanu Reeves as a person is the one taking action. What if Keanu Reeves didn't care what the modder did? If he was the one telling CD-PR to request the take down, then that would be less weird.

 

Edited Note: I added "victimless" before fictional scene. Edited Done.

Edited January 30, 2021 by Space5000

[Mark Kaine]

9 hours ago, Delicieuxz said:

The point is that that's not what CDPR did. They didn't go after the mod on copyright grounds, but instead cited a rule they've written on their website regarding user-generated content.

They did this because they want to be the "good guy" isn't that obvious?  

in the end it doesn't really matter, is it a bit shady? well yes, and also a bit clever though, because it avoids most backlash I suppose. The modder played ball nicely too, probably because he didn't want to get into a juridical dispute with Keanu Superstar Reeves, I'd wager. But know who you're dealing with, everything is shady about this company.

 

I think having *this* ("they made their own rules") as your main pillar of the topic makes the whole discussion weird, you should have probably concentrated on *why* they did this and not how (the how is rather uninteresting, there isn't much to discuss - just a back and forth about how they phrased things) 

 

 

"our rules" is them simply saying "these are our rights and here is what we allow within these rights and what we don't" 

 

that the statement itself is odd, well you have to really consider who you are dealing with here, CDPR, they, like Valve, live in their own world and do not necessarily understand rules and laws apply "to them" they *are* the law in their little world. Doesn't mean in this case they don't have the right to act like they did. 

They simply choose to "ask nicely"  instead of issuing dcma or similar. 

 

 

[Brooksie359]

16 hours ago, Delicieuxz said:

The point is that that's not what CDPR did. They didn't go after the mod on copyright grounds, but instead cited a rule they've written on their website regarding user-generated content.

 

As the thread title and OP say, the reasoning CDPR used for going after the mod is what's problematic. If they had said they were protecting their copyright, I wouldn't have made this thread. But because they said they removed the mod because it violates an arbitrary, non-lawful rule they've asserted on their website regarding guidelines for fan-made content, the action represents a dangerous precedent.

 

CDPR legally don't have the power they claimed to employ to remove this mod. Maybe you're OK with it in this case because it's CDPR and you don't particularly care for the mod. But if EA, Ubisoft, or ActiVision start removing games from people's accounts because people modded their offline game in some way they say contravenes an arbitrary rule they decided upon, what would you say then? You couldn't argue against it if everyone decided now that a publisher actually gets to control the usage of a game they have sold.

 

Copyright allows the copyright-holder to control the making of copies of a work. It doesn't allow them to control how a work they've sold may be use. In this case, copies of CP 2077 that are sold to people are one-off instances that can't be duplicated by those who own the copies. But the usage of their copies isn't controlled by the publisher which sold those copies to people.

 

You actually can do that just fine, and Toyota has no say in the matter.

 

That seems to ignore what you're responding to, which is this:

 

"The people who've purchased copies of CP 2077 own those copies of the game and, as people are allowed to do with their personal property, may modify them per their sole discretion. Actual laws, like copyright and personality rights still apply, but CDPR didn't choose to act on those grounds but outside of them, and that's what's concerning."

 

That CDPR could have acted on copyright grounds hasn't been disputed. It's the fact that they stated for themselves that they acted on grounds other than copyright grounds, and that the grounds CDPR stated for themselves they acted upon aren't legal powers that CDPR possesses, which is the problem and concern.

 

No, they don't posses the power in question, which isn't a power of copyright, but is a power of ownership and control over sold copies of the game.

 

CDPR don't possess a power to be able to dictate and control people's usage and modification of their games in general.

 

No, they don't. Copyright doesn't grant copyright-holders power to control copies which have been sold to other people. Copyright grants the copyright-holder the exclusive right to create copies of a work.

 

https://www.law.cornell.edu/uscode/text/17/106

 

In this thread and in the OP, we're, or I'm, not talking about making copies of a copyright work or distribution of a copyrighted work. I never have been, and the OP doesn't talk about distribution of a copyrighted work. The OP says there are legitimate grounds which the mod could have gone after on - but CDPR, in their statement as to why they sought the mod's removal, made it clear they didn't go after it on a legitimate ground, but on an arbitrary one that doesn't reflect a power or legal right which CDPR actually possesses.

 

The issue I've raised in the OP and talked about in the thread isn't a copyright issue but is about CDPR claiming to have the ability to decide whether and how people may modify the game-copies which people have purchased and own and possess full property rights over.

I still can't understand how you don't understand that they can go after the mod for copyright reasons but the reason they are doing so is because the mod breaks the rules of what they allow in mods. They could potentially go after the majority of mods as it would be distributing copyrighted material but they don't because they generally are fine with people modding their game. The problem is they are not fine with people modding their game to make them be able to have sex with Keanu Reaves so they went after it with the means they have available. This is totally fine and I don't see a problem with it. Fundamentally you can still mod the game individually and there is nothing against that but when you distribute mods then it becomes an issue of distributing copyrighted material and they have every right to go after you for that if they see fit. 

[Delicieuxz]

On 1/30/2021 at 1:28 AM, Brooksie359 said:

I still can't understand how you don't understand that they can go after the mod for copyright reasons but the reason they are doing so is because the mod breaks the rules of what they allow in mods. They could potentially go after the majority of mods as it would be distributing copyrighted material but they don't because they generally are fine with people modding their game. The problem is they are not fine with people modding their game to make them be able to have sex with Keanu Reaves so they went after it with the means they have available. This is totally fine and I don't see a problem with it. Fundamentally you can still mod the game individually and there is nothing against that but when you distribute mods then it becomes an issue of distributing copyrighted material and they have every right to go after you for that if they see fit. 

 

Throughout this thread, I've said that if CDPR went after the mod on copyright grounds that would be fine (however, I wonder if a imposing a character from one place in a game to another would fall under Fair Use rules. It seems to be a transformative use, which suggests it would be Fair Use.). But they instead went after a mod because it breaks some personal rule of theirs - which isn't a legal right or power that they have.

 

The reasoning for the action is what matters here, because the different lines of reasoning they could use make entirely different statements regarding rights of people who've purchased and own the game.

 

Your hypothesis that CDPR didn't approve of the mod and so chose to flex their copyright protection power is a personal conjecture of yours. But it is also wrong because using copyright protection as a means to remove something is an action the essence of which is actually using copyright protection to seek the outcome they want. They would use copyright protection by invoking it in their request or demand for the mod to be removed. But CDPR didn't invoke copyright in their request (and model-swapping in a game could fall under Fair Use). They justified it with completely different reasoning, one which instead of appealing to copyright appeals to a power they don't legally possess, and that makes all the difference.

 

 

Making an appeal to copyright is the literal act of seeking the removal of a mod on copyright grounds (whether they wanted to do so because of their disliking the content or for some other reason). Making an appeal to another reasoning isn't the act of seeking the removal of a mod on copyright grounds, but is the literal act of seeking the removal of the mod based on whichever grounds were appealed to.

 

In this case, CDPR did not seek the removal of the mod on copyright grounds, but by an appeal to a personal rule of theirs which has no legal basis. And the choice of reasoning makes all the difference. CDPR could have asked the modder to remove the mod to be removed because they don't think that it's a respectful usage of Reeves, and could also point-out to the modder that it could harm CDPR's and other developers' prospects to work with other actors in the future - it wouldn't be a legal demand, but it would be a fair request - and the modder likely would have honoured the request. But CDPR instead appealed to what they asserted is an invalid rule of CDPRs about fan-content.

 

You're thinking is that it ultimately doesn't matter whether the basis for the removal was copyright or something-else, so long as CDPR at least had a valid alternative somewhere to go after the mod with. But in law, and as a statement on everybody's rights concerning digital goods, it matters 100%. If people accept CDPR's reasoning, then a convention is being created or fed that undermines software ownership rights.

[Delicieuxz]

Hi Space5000. I'm going to respond to your comment in parts and as I have the time to.

 

On 1/29/2021 at 5:40 PM, Space5000 said:

If it's against the personality rights, then I can understand (otherwise, it's just flat-out censorship in a sense and isn't much different than the idea of Bethesda going after YouTubers for making a rude parody of one of their characters (not that I've seen it happen, mainly making a point.) for a mod.), but why does CD-PR have to do it? If the mod wasn't part of any official server that CD-PR controls, then shouldn't the responsibility be more akin to the modder instead? And shouldn't it be up to Keanu Reeves to sue the modder? Though I am not familiar with every law so maybe CD-PR would still be responsible under law.

 

I don't believe Google removes Copyrighted material on YouTube out of the assumption that the creators will not like it. I think they likely usually do so whenever the creator themselves take action against it, and such video isn't covered by Copyright limitations, and that the YouTube bots removes any duplication of removed content by default. My guesses could be wrong though.

If there was something in the agreement between Reeves and CDPR that empowered them to act as his agent in defence of the usage of his likeness regarding CP2077, maybe. CDPR don't allude to that being the case in their statement, though. So, the idea is conjecture.

 

Quote

@Delicieuxz

Thank you for your response to my comment on here. I have also been reading a lot of your posts about lawful software too.

Yeah it does seem hypocritical. Maybe if they truly cared about ownership, then maybe (a little ironic maybe) they should change the EULA indicating that the license for the game is not going to be revoked on itself as long as the purchase was legit and promise that the possibility of changing the EULA won't change that.

It wouldn't matter. Terms set by a seller can't be applied to something you've already purchased any more than a car salesman can shout as you as you leave the lot in your newly-purchased vehicle, which you paid for in-full using cash, that if you drive over 100 MPH the ownership of the vehicle reverts to the salesman. The idea that a publisher can is dealing in fantasy that only passes go when the audience is ignorant and submissive to the publisher's false pretense of authority.

 

 

EULAs are a psychological game. And to understand the psychological game publishers are playing, a person has to understand how propaganda works, and how the conditioned result of propaganda can be locked-in to make it become the law of the land.

 

Microsoft was doing this with their "Windows as a service" branding in the earlier days of Windows 10, trying to condition Windows owners into believing that when they use Windows they aren't using their own OS as the legal Good that it is, but are utilizing a Service of Microsoft's and so are subject to Microsoft's every whim concerning what happens in their OS.

 

If Microsoft could condition people into believing that the copy of Windows installed on their system is Microsoft's own property, that would give Microsoft free-reign over PCs running Windows and create justification for Microsoft to do all sorts of things that weren't previously considered normal or acceptable rights for a seller of software to have - such as forced updates, unfettered spying on the system, pushing ads in a purchased product, stealing people's personal and private data, and then further using that personal and private data to profit Microsoft (which is unlicensed commercial usage of Windows-owners' [data, hardware, software, electricity, housing] property and the sort of thing any business would sue over if their customers did it with the businesses property). Microsoft are even inexplicably getting a blind-eye turned to them regarding GDPR rules in Europe while they steal people's data and commercialize Windows owners' PCs / electricity / housing / personal activity, etc.

 

Even if Microsoft aren't actively, for now, pursuing the idea that Windows is actually a Service and not a Good from a legal-argument standpoint, using the conniving phrase "Windows as a service" helped to massage people's acceptance of practices that were anticipated to be (and were and should still be to everybody) unpalatable and abusive.

 

Software publishers have been working hard for decades to condition purchasers of software they've made into a particular master / submissive-slave relationship of the mind. When they assert something on the basis of an EULA, they're often working that conditioning and normalizing of their preferred perspective. And they've had select victories, but much more significant defeats when it came to arguing their perspectives in court.

 

 

After conditioning an audience (in this case, game purchasers) to the point where it's expected that a targeted representative from the audience would concede to key aspects of the publisher's perceptive in a court case, the next step is to make it a winnable court case to lock-in yields from the conditioning of the public. And if the court case is won, then that adds momentum to people's submission to that viewpoint and that won case is used as backing for other court cases in other places.

 

After doing this, eventually, what was initially disinformation and of even less valid stature than some random person stating an opinion on a forum, it effectively becomes the law of the land. Publishers haven't achieved that yet, and hopefully they never do. But they are trying to.

 

And the position was of even less valid stature than some random person speaking an opinion on a forum because an opinion is an unverified yet still honest belief or personal judgment, but many of the publishers and their lawyers in this scenario knew that what they were arguing wasn't what the law says, but they have been deliberately conniving people to re-frame perceptions to create a new conceptual regime that interprets the law in a way that the law is fundamentally not intended to be, and which is even diametrically-opposite to what it was intended to be.

 

 

There are a variety of tricks publishers and their employed lawyers use to try to further and protect their narrative.

 

One that I've seen used in a variety places is deceptively conflating court rulings upholding the enforcement of a Terms of Service, which is an agreement concerning usage of a service that is someone-else's property, to assert it as evidence of the validity of an EULA, which is almost-always put-forth regarding usage of a good that is your own property.

 

A ruling affirming that someone is entitled to set the terms for the usage of their own property (as a service-provider does with their services) is not paramount to evidence that a seller can further set the terms for a buyer's usage of the buyer's own property. In fact, it's the total opposite and it affirms that the sellers of the software goods people buy may not impose their wishes concerning its usage upon the buyers of the software instances, because it is the owners of those instances of software who are entitled to set the terms regarding the usage of the software they own.

 

Publishers are trying to have things both ways for themselves, and no-way for everybody else in arguing that they get to set the terms for usage of both their property and other peoples' property. If purchasers of software were to do the same, they would disregard all ToS and tell service-providers that the users of those services get to set the terms for the platform's entitlements from the users' usage of those services and that the users also own the services.

 

 

Another tactic could be to lure-out an opponent's arguments and thoughts, disarming the opponent with a posture of sympathetic interest, so that counter-arguments can be thought-up and prepared for potential arguments before they arise unexpectedly in a legal challenge. And it would be stupidity and foolishness for me to not be aware of that possibility when I respond publicly and to someone I don't know who's digging for thought-processes behind a position. There's no judgment in that statement, by the way. I think the questions are valid and useful for public discussion and awareness.

 

 

 

I think that, unfortunately, most people have made themselves too stupid to recognize the many articulate and reliable avenues open to manipulate others, and that a lot of people who do have some ability of dimensional thought use it silently to exploit others (because apparently most people are liars) and even make a profession out of exploiting others. An unscrupulous lawyer (and there are many - though, they likely think of it as being a 'good' lawyer) in the employ of someone's special interest makes it their business to find as many of those avenues as possible and exploit them.

 

So, industry lawyers are scheming and working towards accomplishing their interests, which puts ownership rights at a disadvantage because the general public isn't making its own effort to affirm and defend them. As the example with Microsoft and Windows 10 shows, the general public rolls-over pretty easily and even tells itself that it's being good people by adhering to what a publisher insists to them is true, to the extent that people who say it's not true can even be criticized for not conforming.

 

And what undermines the general public's ability to realize and protect its own interest is that the public has long been conditioned to think they're being smart by dismissing ideas they're being manipulated as conspiracies that crazy people believe [1] [2] [3] [4] [5] [6] [7]. So, the general public often feels it's being smart precisely for actually being dumb, with what they think is themselves being a good-evaluating person who is civil and non-offensive (see: groupthink) is actually them having been successfully played as a sucker and yielding their own interest to another's dishonest efforts to increase their own interests by coating it in a veneer of conventional polite thought and dogma.

 

 

 

It's worth exploring the reasons why publishers seek to impose a regime of non-ownership and of no rights for software purchasers. It isn't something I'll get into in large detail here, but I think it comes down to money and that some likely motivations of theirs include:

 

- to prevent a second-hand market of digital goods from arising, which could potentially deeply cut into their profits. There are solutions to that concern, but publishers generally don't want to even have to deal with it. While I'm supportive of people's ownership rights over their purchased things, which include their purchased software, I think there could be created a legal exemption (just like there currently are exemptions to copyright law) for publishers and digital retailers of digital goods which allows them to not facilitate the transfer of the registration of a game from one account to another. There could also be systems in place which ensure publishers get a strong cut of 2nd-hand sales [2]. After all, to move a digital game from one account to another involves a service from the platforms hosting the game - and that can involve service fees and rules set by the platform.

 

- as a digital form of forced / planned obsolescence. To make it easier to retire old products (such as online games) so that they can push people to buy and play their newer products, to not have their newer, potentially-inferior (even if only in some ways) products compared to previous releases, and to get players out of games which released without heavy micro-monetization mechanisms and into games which have micro-monetization mechanisms.

 

- to prevent over-saturation games available to play on the market. What happens to new game sales when there are so many games with advanced graphics and systems available on the market that most of the traditional purchasers of new games no-longer feel it's important to buy new games at full price? There's been no attempt at mass-culling old games yet on PC, but if publishers convince purchasers of games that they don't own their games and the games can be revoked from them per the whim and discretion of the publisher, then culling old games to increase demand for new games remains a card they have up their sleeves. A mass-culling could be enacted by a popular platform closing-shop, if there's no universal ownership ledger system implemented at the time it happens.

 

- because they're power-tripping / have a god-complex / got bullied in school and now they think it's their turn to lord themselves over others. Also, as often happens with runaway success in something, the person is addicted to increasing their personal power and want see how far they can take it: Big publishers buy up popular smaller developers to lay claim to their products and success while corralling customers into their domain through exclusivity; billionaires keep growing their empires into all unrelated things and keep amassing more hundreds of billions of dollars that they could never spend in their lifetime.

[Delicieuxz]

Part 2.

 

On 1/29/2021 at 5:40 PM, Space5000 said:

For the unenforcability arguments here, I am usually skeptical about some of your posts as I have seen several courts hold that some forms of EULAs would be enforceable

There is markedly little available material demonstrating that to be a common view of courts, and just about no evidence of it outside of the US.

 

In my original post about software ownership and licenses, in the section "About software ownership in the USA", I mention that in the US there have been some rulings which were in favour of EULAs and I give links to those cases while providing what I see as caveats to those decisions and why they likely wouldn't stand further scrutiny. I also mentioned the 2013 US Supreme Court ruling, which supersedes any lower court's ruling, concerning foreign copyrighted works, in which the judge asserted as part of his reasoning for his ruling that the First-Sale Doctrine necessarily applies to software.

 

I also referenced in this post, on the first page of this thread, an article by a US ToS lawyer which concludes that an EULA might be enforceable in some situations, but not in others.

 

I pointed-out that, in that article from 2019, just two prior cases are referenced as examples of an EULA being upheld by a US court. One of those cases being from 1996, long before any decent understanding of software existed in courts. The other, Feldman v. Google, Inc. (2007), actually isn't an example of an EULA being upheld but of a Terms of Service being upheld. And as I explained in previous posts in this thread and in my original post about software ownership and licenses, an EULA and a ToS are not the same thing and they don't apply to the same situations: A Terms of Service obviously applies to a Service, whereas an EULA almost-always applies to a Good that has been purchased by someone.

 

In my previous post in this thread, I mention that I've seen, in a variety of places, the upholding of a ToS presented as evidence of EULA validity - such as that article from 2019 does. But EULA and ToS aren't the same thing. And while it makes perfect sense for a ToS to be upheld, the same reasoning for why doesn't apply to an EULA for software which somebody has purchased.

 

Ross, in his Games as a Service is Fraud video, also explains that the US' record on EULAs is a bit different than elsewhere.

 

On 1/29/2021 at 5:40 PM, Space5000 said:

and even heard that a lawyer on YouTube made this video responding to Accursed Farms's video, and if I'm remembering the video right, there were disturbing parts about private contracts being able to contradict with with certain protection laws, just because of contracts being private.

Concerning the comment made by Lior, the presenter of that video, about contracts being able to entail provisions that are "contrary to the default state of the law", and that having a provision that's contrary to the default state of the law "does not mean that it's unenforceable", it's difficult for me to give a specific response because he doesn't give examples for what he's thinking of.

 

For example, if the law says that people have a right to free speech, a contract could say that a person will refrain from making public statements or giving their opinions about on a topic while being employed by the party offering the contract. That makes sense. In that example, the contract hasn't negated the law, but the person who accepts the contract has exercised their freedom of choice to give-up a portion of their rights in exchange for whatever the contract promises them.

 

But I think the context when applied to Ross' video talking about the topic of software ownership is that publishers are selling software goods, while effectively claiming in their EULAs that the laws of Goods vs Services doesn't apply to them, in-effect attempting to deny what the legal definition of a good is. That would probably be analogous to a contract denying that free speech even exists, and so a person accepting the contract doesn't have any to give-up.

 

So, a contract can contain a provision that requires a person to give-up some of their rights, but a contract can't deny the existence of the law of the land including the legal definitions for terms.

 

And the difference between the two scenarios is proven in the Australian case where Valve argued that people hadn't been sold software goods because the license agreement claimed they hadn't. The Australian court effectively told Valve, 'your arguments are ridiculous denials of legal reality, the legal identity of what you sold is a good and therefore the rights granted by the law concerning goods apply' :

 

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

Quote

" 126    The second issue is whether there was a “supply of goods” by Valve. Valve accepted that if “goods” were provided by it to consumers then the goods had been “supplied” (ts 218). "

 

" 128    The definition of “goods” is inclusive. ... The legal meaning of “goods” can be analogised to the strict definition of “property” which is “a description of a legal relationship with a thing”: Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351, 365-366 [17] (Gleeson CJ, Gaudron, Kirby, and Hayne JJ describing the word “property”). "

 

" 137    Valve supplied consumers with a good. "

 

" 145    I reject Valve’s submission that goods supplied by licence are not a “supply of goods” "

 

" 340    ... "Each of Valve’s challenges to the applicability of the Australian Consumer Law fails." ... "Valve supplied goods (which are defined as including computer software). "

 

 

 

In his video, Lior also expresses that it's genuinely unreasonable to expect people to actually read those license agreements and that he has no idea why courts still assume that people do. He further states that he, and everyone, has gotten into the habit of just clicking 'I accept' on the agreements, which means that there is no meeting of the minds when it comes to EULAs and so it can't really be said that anything was agreed to.

 

What he says there is extremely-significant testimony against the authoritativeness of an EULA and its possible constitution as a binding contract, coming from a seasoned lawyer who writes them.

 

And what Lior said is proven to be entirely correct:

On 7/29/2018 at 9:38 PM, Delicieuxz said:

Considering that it is even unreasonable to expect people to read EULAs, there is a question of how could an EULA-based argument pass the "reasonable person" or "the man on the Clapham omnibus" legal tests. An EULA can often be nothing more than an extremely long-winded and self-aggrandizing equivalent of printing a © symbol, with the parts of it that reach beyond the meaning of a © symbol being invalid.

 

Demonstrably, it is literally impossible for any person with a normal life to actually read all the agreements they are presented. Therefore, it is inarguably unreasonable to expect them to have been read, and it is therefore a given that there is usually no meeting of the minds when an agreement's 'I agree' button is clicked on.

 

But a meeting of minds is an essential requirement [2] [3] [4] [5] in order for a contract to be legal and binding. Therefore, in most cases relating to EULAs, nothing was agreed to and there should be no contract in play except for the contract of sale which is the transfer of ownership for a product from its seller to the buyer in-exchange for monetary or other compensation from the buyer to the seller.

 

 

As Lior states, he write EULAs and ToS' for software companies. So, he has skin in the game and might be expected to have a publisher-favouring view of the matter - conscious or subconscious.

 

That said, I think Lior made a good and honest video and that he was sincere in what he said.

 

Not referring to anything he said in particular, that doesn't mean he was right about everything he said. After all, the subject matter involves opinions, predictions, and sides making arguments which might fail in one case but succeed in another, and vice versa. As an example, I think this lawyer, whose name is Nick, said that they disagreed with Lior and some other critics of Ross' video on some points. I don't have timestamps of where he said that on-hand.

 

 

 

Regarding the idea that a lawyer said something is evidence that what was said is true, I have a something to say about that - and I don't mean this about any lawyer in particular, but just the general idea of taking what an industry lawyer says at face-value.

 

A lawyer is not a legal truth-speaker - except maybe to their client. A lawyer is an advocate for hire, with their job being not to represent the law as it, as it is intended, or as it is good to be, but to navigate and shape interpretation of the law to secure the most benefits and dismiss the most negatives for their employer. And in the course of their advocacy for their employer's interests, a lawyer can also be a liar for hire.

 

A copyright lawyer likely makes makes a lot of their living by advocating for copyright holders' interests and will probably simply tell you or the public what is in their employer's or their own professional interest for you to think. After all, they make their money and reputation that way.

 

Examples of copyright holders include big publishers and developers. Large gaming publishers can afford the 'best' lawyers, and their definition of a 'best' lawyer is likely going to be the one that argues whatever it takes to accomplish whatever the publisher wants accomplished. Many of them would prefer that you didn't own your software, and so lawyers in their employ will argue and assert-as-true (regardless of whether it actually is) that people don't own their software - despite that courts around the world have ruled otherwise.

 

But if you were to talk with a consumer rights lawyer, which are often arguing from the opposite side of things as a copyright lawyer, you might hear a completely-opposite viewpoint and interpretation, such as was heard in France.

 

To understand your rights as an owner of software which you've purchased, you don't take the word of an EULA written by a software industry lawyer on behalf of a software publisher, because an EULA is psychological manipulation and advocacy for the interests of the software publisher.

 

That is like going to the 'wallet inspector', who pockets your wallet, for information about what your rights are concerning their 'inspection' of your wallet.

[Brooksie359]

5 hours ago, Delicieuxz said:

 

Throughout this thread, I've said that if CDPR went after the mod on copyright grounds that would be fine (however, I wonder if a imposing a character from one place in a game to another would fall under Fair Use rules. It seems to be a transformative use, which suggests it would be Fair Use.). But they instead went after a mod because it breaks some personal rule of theirs - which isn't a legal right or power that they have.

 

The reasoning for the action is what matters here, because the different lines of reasoning they could use make entirely different statements regarding rights of people who've purchased and own the game.

 

Your hypothesis that CDPR didn't approve of the mod and so chose to flex their copyright protection power is a personal conjecture of yours. But it is also wrong because using copyright protection as a means to remove something is an action the essence of which is actually using copyright protection to seek the outcome they want. They would use copyright protection by invoking it in their request or demand for the mod to be removed. But CDPR didn't invoke copyright in their request (and model-swapping in a game could fall under Fair Use). They justified it with completely different reasoning, one which instead of appealing to copyright appeals to a power they don't legally possess, and that makes all the difference.

 

 

Making an appeal to copyright is the literal act of seeking the removal of a mod on copyright grounds (whether they wanted to do so because of their disliking the content or for some other reason). Making an appeal to another reasoning isn't the act of seeking the removal of a mod on copyright grounds, but is the literal act of seeking the removal of the mod based on whichever grounds were appealed to.

 

In this case, CDPR did not seek the removal of the mod on copyright grounds, but by an appeal to a personal rule of theirs which has no legal basis. And the choice of reasoning makes all the difference. CDPR could have asked the modder to remove the mod to be removed because they don't think that it's a respectful usage of Reeves, and could also point-out to the modder that it could harm CDPR's and other developers' prospects to work with other actors in the future - it wouldn't be a legal demand, but it would be a fair request - and the modder likely would have honoured the request. But CDPR instead appealed to what they asserted is an invalid rule of CDPRs about fan-content.

 

You're thinking is that it ultimately doesn't matter whether the basis for the removal was copyright or something-else, so long as CDPR at least had a valid alternative somewhere to go after the mod with. But in law, and as a statement on everybody's rights concerning digital goods, it matters 100%. If people accept CDPR's reasoning, then a convention is being created or fed that undermines software ownership rights.

You are way overreacting. Regardless of what you think this would imply it really isn't a big deal. The fact of the matter is mod distribution will always be able to be taken down under copyright laws so this wouldn't change that to begin with. You can mod your game all you want but once you start to distribute it you are going to run into copyright issues and fair use is going to be a tough sell and you would have to take it to court to see if they would agree. Personally I doubt you would win the case tbh. 

[Delicieuxz]

18 hours ago, Brooksie359 said:

You are way overreacting. Regardless of what you think this would imply it really isn't a big deal. The fact of the matter is mod distribution will always be able to be taken down under copyright laws so this wouldn't change that to begin with. You can mod your game all you want but once you start to distribute it you are going to run into copyright issues and fair use is going to be a tough sell and you would have to take it to court to see if they would agree. Personally I doubt you would win the case tbh. 

That might be your perception based on your understanding. But the fact is that mods are not always always able to be taken-down under copyright laws because mods don't always contain copyrighted material, even if they're meant to be used with copyrighted material. I think the large majority of mods actually don't contain any copyrighted material and so couldn't be taken-down on copyright grounds.

 

And, again, the CDPR reasoning for seeking the mod's removal wasn't on copyright grounds, so arguments based on the idea that the mod could've been removed on copyrights grounds are neither here nor there to what was actually done.

 

A publisher would also have to take a modder to court to prove that something isn't fair use. In the case of a model swap within a game, ignoring that it features a real person's likeness in this case (which isn't a copyright issue), I think a publisher would have an extremely difficult, and likely impossible, time arguing that it isn't fair use, as such a mod doesn't quantitively or qualitatively copy the core value of the protected work, which is CP 2077, or threaten CDPR's benefits from that work. I personally lean towards thinking it's safe to say that a company would have no chance whatsoever to succeed in arguing that isn't fair use.

[Space5000]

Wow, the reply is a lot to me, thanks Delicieuxz. Haha

It's a lot to respond to and can be a bit hard to quote, so I will try to write some paragraphs mostly based off what I read so far and apologizes if I expressed something wrong based off a false assumption...

 

My Response for Some of CD-PR Commentary

For the CD-PR part being responsible, I was actually thinking about the possibility of CD-PR promising in a contract to take action against unauthorized uses of the person's likeness and if it's true then that might be a valid point suggesting CD-PR has to take it down, if they don't want to get in trouble. Not sure if you were suggesting a similar example, but either way it would likely be a valid point.

 

For the part where I was suggesting that CD-PR write a more better enough EULA out of the care for game ownership, I don't think I was trying to make an argument about whether the EULA is enforceable for that part. I think I was mainly suggesting that if they cared about ownership, they would make a EULA properly reflecting that regardless if their contract was ever enforceable in the first place, and maybe 'just in case' it could be enforceable (some courts might still try enforcing it) somehow.

 

Commentary Involving YouTuber Law and Some Misc.

The part about being able to give up some rights is interesting. Do you think places like the EU, Australia, and Norway can equally apply? I've heard some rights cannot be taken away, but sometimes I hear some can. So it can be hard to tell. Can Fair Use (or close to that) rights be taken away via contract in some countries? I've heard a court ruling that a contract in the USA somewhere saying that a certain contracts can if I'm remembering right. If someone agreed with full awareness to a clause saying they cannot criticize a product, can that really be enforceable? If an Australia law specifically said that one of the property rights include the right to keep forever with no interruption, can a knowledgeable contract take that away? Added Edit: Oh yeah I also want to point out that Lior did use an example by saying the company being able to terminate license isn't contrary to law because of private contract at 10:50. Though maybe this was more about 'services', and differs with EULAs for offline. Edit Finished.

 

I don't remember for sure, but I could of somewhat sworn I saw a court relying on someone trying to challenge the definition of "software", as an attempt to avoid the seller from trying to take ownership against the specific copy of it, but failed, but my memory is super blurry here for now.

 

For the unconsciousness part of a contract, unfortunately, this might not be so good for those who already knows about terms assuming this is more about 'actual knowledge' or 'constructive knowledge' about terms (though some terms probably won't be enforceable). This means that as long as the person, unless confession isn't enough, admitted to knowing the terms prior to sale, then certain courts might rule it binding (except for any terms inside of it being ruled void). Here is some court case involving someone who knew about the terms of the website (granted, this is a terms of service I think, but the binding argument might apply for both here). In a personal level from my own, I actually want to buy a specific video game system, but I did look up the EULA and already am generally aware of it, in a place where meeting of minds is required, I probably wouldn't be safe here unless maybe I lied about it.

Speaking of awareness of contract, I've often wonder if there is a requirement of showing intention of a contract being formed in the first place outside of the contract via design? I've usually only seen the "knowledge" and "agreed" arguments but unsure if I've seen a court case suggesting that there must be a design element as an additional (with no alternative) element. For example, I know a system that has multiple EULAs, and a specific EULA only shows if I selected that region. But the EULA itself doesn't make that clear it's for the region, and does define "usage" of the system as deemed agreed inside of it. I am aware of the EULA too.

 

Of course a lawyer isn't the source of truth by default, Though since some lawyers are usually good at understanding the law, the video was something I thought to share anyway.

 

That's my main commentary, sorry if I'm being messy here. Also if this discussion seems more off-topic here, feel free to let me know.

Edited January 31, 2021 by Space5000
Mainly added something, and changing a sub-title.

[Mark Kaine]

7 hours ago, Delicieuxz said:

A publisher would also have to take a modder to court to prove that something isn't fair use.

From my knowledge this happened like exactly once(koei tecmo) and they lost the case... (tho my memory is hazy, could be all wrong) 

 

But what usually happens is the publisher's lawyers will write some letters and bully the mod author into submission... no one really wants to deal with this stuff just because they made a mod a few thousand people downloaded...

 

Same thing here, apparently the modder gave in immediately, understandably so, because why would they want to deal with all this because of a sex (model swap) mod they made for fun... idk, I certainly wouldn't! 

 

 

 

ps: https://www.google.com/amp/s/www.pcgamer.com/amp/koei-tecmo-is-suing-the-makers-of-a-nude-modded-dead-or-alive-dvd/

 

^ I believe they lost, but the article doesn't have an update (yay "journalism") 

 

EDIT: LOL this is apparently a *new* case, hence no update...! 

 

They pulled the same thing around 2012 or so... (and lost as said iirc...) 

[Delicieuxz]

Glad the replies helped out, Space5000.

 

21 hours ago, Space5000 said:

Commentary Involving YouTuber Law and Some Misc.

The part about being able to give up some rights is interesting. Do you think places like the EU, Australia, and Norway can equally apply? I've heard some rights cannot be taken away, but sometimes I hear some can. So it can be hard to tell. Can Fair Use (or close to that) rights be taken away via contract in some countries?

I think that's what's happening whenever you legally commit to doing something. In committing to something in a deal, you've exchanged a limited portion of your default freedom for recompense.

 

If you've legally committed to doing or not doing something, then you're legally committed to that arrangement. But the point about EULAs is that they're not legal documents or contracts.

 

 

Quote

Added Edit: Oh yeah I also want to point out that Lior did use an example by saying the company being able to terminate license isn't contrary to law because of private contract at 10:50. Though maybe this was more about 'services', and differs with EULAs for offline. Edit Finished.

That's not an example in support of his claim, that's the unproven claim he's trying to validate through his assertion that a private contract can contradict the law.

 

I'm first going to quote what I previously said about his comment, and then explain why the situation of an EULA doesn't befit the situation that I guessed Lior might be talking about:

On 1/30/2021 at 10:09 AM, Delicieuxz said:

Concerning the comment made by Lior, the presenter of that video, about contracts being able to entail provisions that are "contrary to the default state of the law", and that having a provision that's contrary to the default state of the law "does not mean that it's unenforceable", it's difficult for me to give a specific response because he doesn't give examples for what he's thinking of.

 

For example, if the law says that people have a right to free speech, a contract could say that a person will refrain from making public statements or giving their opinions about on a topic while being employed by the party offering the contract. That makes sense. In that example, the contract hasn't negated the law, but the person who accepts the contract has exercised their freedom of choice to give-up a portion of their rights in exchange for whatever the contract promises them.

 

But I think the context when applied to Ross' video talking about the topic of software ownership is that publishers are selling software goods, while effectively claiming in their EULAs that the laws of Goods vs Services doesn't apply to them, in-effect attempting to deny what the legal definition of a good is. That would probably be analogous to a contract denying that free speech even exists, and so a person accepting the contract doesn't have any to give-up.

 

So, a contract can contain a provision that requires a person to give-up some of their rights, but a contract can't deny the existence of the law of the land including the legal definitions for terms.

 

And the difference between the two scenarios is proven in the Australian case where Valve argued that people hadn't been sold software goods because the license agreement claimed they hadn't. The Australian court effectively told Valve, 'your arguments are ridiculous denials of legal reality, the legal identity of what you sold is a good and therefore the rights granted by the law concerning goods apply' :

 

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca0196#_Ref445465996

 

That's what I previously said about it.

 

Now, that situation, of a contract provision altering the default state of a person's rights, doesn't apply to EULAs because, in order for an EULA to be altering a default state so that people don't own their software and the publisher can rescind the software at any time, the default state has to be that people own their software. And if the default state is that people own their software, then a publisher has no ability to set any terms over the person's usage of the software in the first place.

 

A software publisher claiming any terms in an EULA for software that you've purchased is like me, right here and now, stating that if you use your keyboard to type a reply, then you agree that your life savings belong to me. It's of the exact same authoritativeness and with the exact same legal basis - which is none at all.

 

Further, as I've said before, a claim that a party could revoke their part in a contract at any time per their discretion represents an illusory promise, and that illusory promise invalidates the legality of any otherwise-binding contract.

 

On 1/29/2021 at 11:01 AM, Delicieuxz said:

https://legal-dictionary.thefreedictionary.com/Illusory+Promise

Illusory Promise

A statement that appears to assure a performance and form a contract but, when scrutinized, leaves to the speaker the choice of performance or non-performance, which means that the speaker does not legally bind himself or herself to act.

 

When the provisions of the purported promise render the performance of the person who makes the promise optional or completely within his or her discretion, pleasure, and control, nothing absolute is promised; and the promise is said to be illusory. For example, a court decided that a promise contained in an agreement between a railroad and an iron producer whereby the railroad promised to purchase as much iron as its board of directors might order was illusory and did not form a contract.

 

 

Quote

I don't remember for sure, but I could of somewhat sworn I saw a court relying on someone trying to challenge the definition of "software", as an attempt to avoid the seller from trying to take ownership against the specific copy of it, but failed, but my memory is super blurry here for now.

I'm not aware of such a case.

 

Quote

For the unconsciousness part of a contract, unfortunately, this might not be so good for those who already knows about terms assuming this is more about 'actual knowledge' or 'constructive knowledge' about terms (though some terms probably won't be enforceable). This means that as long as the person, unless confession isn't enough, admitted to knowing the terms prior to sale, then certain courts might rule it binding (except for any terms inside of it being ruled void). Here is some court case involving someone who knew about the terms of the website (granted, this is a terms of service I think, but the binding argument might apply for both here).

From a quick look at it, the case involves a Terms of Service. But that document is reviewing a decision made regarding a filed motion to dismiss the case, and not the case itself. The document ends with the motion to dismiss being denied.

 

That isn't a ruling on the case. It just means that the case can proceed in court, as opposed to being tossed-out at the request of the defendant.

 

 

I don't know about the situation you described regarding a system of some kind with EULAs and regions.

[Mling]

I hope in this mod Keanu's boobs aren't as crappy-fake looking as the ones in fallout 4 & skyrim

[Delicieuxz]

22 hours ago, Mark Kaine said:

From my knowledge this happened like exactly once(koei tecmo) and they lost the case... (tho my memory is hazy, could be all wrong) 

 

But what usually happens is the publisher's lawyers will write some letters and bully the mod author into submission... no one really wants to deal with this stuff just because they made a mod a few thousand people downloaded...

 

Same thing here, apparently the modder gave in immediately, understandably so, because why would they want to deal with all this because of a sex (model swap) mod they made for fun... idk, I certainly wouldn't! 

 

 

 

ps: https://www.google.com/amp/s/www.pcgamer.com/amp/koei-tecmo-is-suing-the-makers-of-a-nude-modded-dead-or-alive-dvd/

 

^ I believe they lost, but the article doesn't have an update (yay "journalism") 

 

EDIT: LOL this is apparently a *new* case, hence no update...! 

 

They pulled the same thing around 2012 or so... (and lost as said iirc...) 

Cool. In that case, publisher Koei Tecmo is suing someone who was selling DVDs that contained of video footage from Dead or Alive Xtreme: Venus Vacation, which is a free-to-play title, after modding the characters in the footage to be nude.

 

Using Google Translate for Koei Tecmo's notice on their website about the violation, it sounds like the issue isn't modifying the models, but is duplicating the non-modded content and selling it. Koei Tecmo seem to say that despite a mod changing some of the content from its original form, the content is still their copyrighted property. So, the suit is in-spite of the video footage being modded from its original form, and not because it's modded.

 

BTW, I notice there's nude-modded DoA footage on YouTube.

 

In this situation, the defendant was seemingly commercializing unauthorized duplicates of Koei Tecmo's property, which would be fully violating the copyright and not protected by Fair Use. Except the original DoA work is meant to be played, and not just watched, and so a video of the gameplay, modded, might be like a playthrough video on YouTube - but then people don't directly sell their YouTube gameplay videos. However, the defendant might claim they were selling a demo of the modification.

 

 

 

In this video, it's said that there are, in general, four factors used by courts to determine whether usage of copyrighted material is "fair".

 

 

- Purpose and character of the use, and whether it's transformative

 

- Nature of the copyrighted work (whether it's more about practical functionality, or creative originality)

 

- How much of the work you use (quantitative substantiality and qualitative substantiality - how much of the content is used, and how much of the overall work's value is represented in the part that's used)

 

- The effect of the use on the potential market for, or the value of the copyrighted work - if the derivative work doesn't harm the copyright-owner's ability to make money, then it's likely on the safe-side

 

 

The video also says that the scope of Fair Use keeps expanding.

 

 

Concerning a free model-swap within the game the model originates from, it uses a trivial amount of the work's content, and it doesn't threaten or at-all impact the work's prospects within the market (other than to potentially incentivise people to buy the product to use the mod), or the publisher's profits because, in order to use the mod, a person has to own a copy of the game. It should be perfectly within Fair Use.

[Space5000]

In Commentary Toward Delicieuxz's Reply to Me

 

 

Interesting, but for me I guess it's a bit hard to tell. Some laws in some places of the world don't allow "Unfair Contracts" for I think some contracts. I guess an example I can understand likely being enforceable is a typical NDA, but that's probably not the best example because of of a mix of privacy laws, so maybe a better one would be "You agree that you will not say "cat cat cat" with the product I sold to you." but a contract flat out stating that the person give up the entirety of a first amendment is probably less likely to be enforceable. I don't remember if I mentioned property rights before but I'm more concerned about property rights. If I buy a comb from some general store, and for some reason there was a contract stating "You cannot throw it on the ground, or else you must return it back or destroy it.", would that have a good chance of being enforceable? Or partly enforceable? In the assumption that it passes the offer and acceptance element of course.

I think one main reason why I asked is because you have said that people can't tell them what they can and cannot do with their property, such as a car.

 

Yeah I believe I generally read the part mainly reacting to Lior's video. Apologize if I missed something. If I still did, I can probably just go back and read it.

 

Yeah I generally read your part about the Illusory Promise, but I do hope there will be courts to realize this. Haha

But I am curious about clauses that gives out a reason why they can change the terms, but the reason is way more broad than being so specific. What is your thoughts on that?

In one part of the Power Tools court case, where it starts with ""because no affirmative" (ctrl f in firefox, I can't copy or right click on it), it might still be suggesting it. I think I found this, or a similar document from an article suggesting that recently a click-wrap license was enforceable. Though there is a chance that I might of linked to the wrong document.

 

For the region thing, it was the Nintendo Switch. There are about 5 selections: Japan, Americas, Europe, and some other ones. You can select it on first start up, and I think depending on the region you select, it will give you the EULA (or EULA like). America has it's own, Japan has it's own, and one with Hong Kong with some other countries has it's own. Europe and some do not. Nothing in most of the documents mention what country it applies to (but does describe usage of system as binding I think), but the design of the region selection seems to suggest it depends on the region, especially in system settings but I don't know if a court would ever consider that design feature a necessary element for being enforceable as a contract. Now it's a EULA, and as you said maybe, they are not enforceable, but I'm just making a scenario for the purpose of the argument of the region thing alone for many contracts in general.

[Delicieuxz]

On 1/31/2021 at 5:56 PM, Space5000 said:

Interesting, but for me I guess it's a bit hard to tell. Some laws in some places of the world don't allow "Unfair Contracts" for I think some contracts.

What I've said isn't arguing against that. It's absolutely true that there are protections against unfair contracts. And the concept of unconscionability disallows unfair contracts, as does the concept of an illusory promise invalidating a contract. So, the idea of unfair contracts has been getting talked-about throughout this discussion.

 

Quote

I guess an example I can understand likely being enforceable is a typical NDA, but that's probably not the best example because of of a mix of privacy laws, so maybe a better one would be "You agree that you will not say "cat cat cat" with the product I sold to you." but a contract flat out stating that the person give up the entirety of a first amendment is probably less likely to be enforceable.

When I said a person can give-up some of their default rights in the course of a contract, I was thinking of things like being required, when representing a company, to not give public statements or opinions on certain topics that could harm the company's image or business prospects - like someone promoting a product, film, etc. An NDA could be another example. Or not being allowed to invest in or give advice on investing in stocks due to being in a position of  having insider knowledge - which is a restriction that comes from the law, but is still an example of giving-up some default rights as a result of making a commitment.

 

An example of being forbidden from saying something on nonsensical grounds isn't what I was talking about. A restaurant, for example, can't tell their customers that by buying food from them they agree to not leave a negative online review of the restaurant.

 

And I've brought-up the importance of reasonableness in previous posts:

On 7/29/2018 at 9:38 PM, Delicieuxz said:

Considering that it is even unreasonable to expect people to read EULAs, there is a question of how could an EULA-based argument pass the "reasonable person" or "the man on the Clapham omnibus" legal tests. An EULA can often be nothing more than an extremely long-winded and self-aggrandizing equivalent of printing a © symbol, with the parts of it that reach beyond the meaning of a © symbol being invalid.

 

 

Quote

I don't remember if I mentioned property rights before but I'm more concerned about property rights. If I buy a comb from some general store, and for some reason there was a contract stating "You cannot throw it on the ground, or else you must return it back or destroy it.", would that have a good chance of being enforceable? Or partly enforceable? In the assumption that it passes the offer and acceptance element of course.

I think one main reason why I asked is because you have said that people can't tell them what they can and cannot do with their property, such as a car.

If you've bought and own that comb, the seller can't control what you do with it. Copyright and trademark laws still apply, but the seller's authority over the item which you've bought has expired. Either the item is yours or it's theirs - and whosever's it is possesses the decision-making authority over it. If they sold it to you, then it's yours and you can do whatever you want with it that's within the law - and that includes reverse-engineering it even if the seller says you can't.

 

The only way someone continues to have a say over an item is if they continue to have some ownership over that item, and their ownership over an item ends when they sell that item. There's nothing else to say about that.

 

Quote

Yeah I generally read your part about the Illusory Promise, but I do hope there will be courts to realize this. Haha

But I am curious about clauses that gives out a reason why they can change the terms, but the reason is way more broad than being so specific. What is your thoughts on that?

If someone claimed they could change something in a contract, I'd want to see what they're claiming they can change. If they simply say they can change the terms in general, then that's an illusory promise [2] because, ultimately, nothing has been committed to as nothing is binding upon the speaker.

 

Quote

In one part of the Power Tools court case, where it starts with ""because no affirmative" (ctrl f in firefox, I can't copy or right click on it), it might still be suggesting it. I think I found this, or a similar document from an article suggesting that recently a click-wrap license was enforceable. Though there is a chance that I might of linked to the wrong document.

A clickwrap isn't always enforceable, it comes down to the individual situation. And when someone uses the term clickwrap, it matters whether the particular clickwrap agreement was a ToS or an EULA. Cases involving the term are almost always concerning a service and a Terms of Service.

 

Usage of the term "clickwrap" to refer to both simultaneously is falsely conflating what are two distinct things that apply to two distinct situations. For example, this list of clickwraps being upheld isn't evidence of the legitimacy of EULAs because all the cases listed there are Terms of Service cases, and not EULA cases. But I've seen that list presented by a lawyer as an argument that EULAs are enforceable when that list has nothing to do with EULAs.

 

 

Conflating EULAs with ToS by calling them both clickwrap agreements is a trick used to try to impart the legitimacy of a ToS upon an EULA through association in a term. Just saying that "clickwraps" are enforceable is like saying 'vehicles require a driver's license to operate'. Airplanes don't, space-shuttles don't, toboggans don't, boats don't, a horse doesn't, a shopping cart carrying a baby doesn't, a wagon that a kid rides down a hillside in doesn't...

 

If an article simply says that clickwraps are enforceable, then either the writer is not informed or they're shilling for an industry or profession to spread propaganda trying to convince people that they're subject to whatever agreement a platform or publisher presents them with.

 

Look at cases themselves, and not what an article summarizes everything as. As I've said, cases involving Terms of Service agreements are often misrepresented as counting as some evidence regarding the legitimacy of EULAs. But a ToS and an EULA are different things, almost-always (except in the case of free-to-use software, which is also a service and so those should be called ToS, as well) applying to different situations.

 

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For the region thing, it was the Nintendo Switch. There are about 5 selections: Japan, Americas, Europe, and some other ones. You can select it on first start up, and I think depending on the region you select, it will give you the EULA (or EULA like). America has it's own, Japan has it's own, and one with Hong Kong with some other countries has it's own. Europe and some do not. Nothing in most of the documents mention what country it applies to (but does describe usage of system as binding I think), but the design of the region selection seems to suggest it depends on the region, especially in system settings but I don't know if a court would ever consider that design feature a necessary element for being enforceable as a contract. Now it's a EULA, and as you said maybe, they are not enforceable, but I'm just making a scenario for the purpose of the argument of the region thing alone for many contracts in general.

I haven't read whatever EULA of Nintendo's that's shown starting-up the system. However, I can tell you that it's irrelevant to your ownership-granting rights over that system including any software installed on it. A company doesn't have a legal ability to set terms over something which it has sold.

 

Regarding region, does copyright law and the first-sale doctrine, or an equivalent exist where you are? Does the contract of sale exist where you are? If so, then who cares about an EULA that you see after opening your Nintendo? If choosing to care about it, you've elevated a company above the law of the land and surrendered your rights to a random party on the basis that they told you they have power which they actually don't.

 

If a Nigerian prince tells you that they are the ruler of your bank-account and that you must send all its contents to an address they give you, does that claim reflect reality? No. If Nintendo is surrogating itself in the role of a Nigerian prince, does the answer to that question change? No.

 

And I'm reminded of the 2013 US Supreme Court's assertion that the first-sale doctrine necessarily applies to system software that is included within a larger product (the USSC example being automobile software that is included in a sold car).