| Post/Author/DateTime | Post |
|---|---|
| #1GrinningGrigSep 04, 2009 22:13:16 | I generally like these forums, and was hopeful that a group (and maybe individual user pages) could be used privately by our gaming group to share campaign info, character stats, maps, photos, thoughts, etc. And it could... EXCEPT... by the User Content section current Terms of Use, anything uploaded effectively becomes property of WotC indefinitely and for free, and they can do what they like with it and share it with the world! Not cool. What a shame. The potential of the tool is awesome. And I don't seriously think they'll resell my creations, steal my characters' names, monitor (let alone broadcast) our private conversations, use (even sell) my artwork or photos in incriminating ways, or get me in trouble for uploading an avatar image that I don't have the copyright to. But as it stands, we've agreed to allow them to do all of that. (I'm actually okay with the avatar restriction, incidentally.) Please, WotC. User content should remain the users'. If you really want to use or own something, you should have to ask permission and potentially even buy it. I wouldn't mind if there were groups specifically meant for submitting stuff for your consideration... and perhaps others for the public domain. But private groups? Let's please keep them private. I understand you don't want to be (and shouldn't) be liable for unintentional leaks of information. But claiming everything for yourselves is not right. Please change the Terms of Use to be more fair.
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| #2mikroponeSep 04, 2009 23:11:21 | That is pretty lame. It's like: gamer: "hey guys, check out this cool idea I just came up with!" *wizard employee logs on* wotc employee: "Yoink! I'll take that... sweet, this is a great idea! I'll be able to use this for sure." *wizard employee takes credit for idea read on community site then cashes in check* I'm pretty sure it already happens to some extent with all the content being developed across the many forums and blogs. I'm also pretty sure that this is the reason why wotc hasn't brought down the hammer on a lot of these guys, since it's all fan material and wotc already has a stance where they could bring down the hammer if they wanted to the blogs and forums are basically a great resource for the empoyees to use. Still, this is all just conspiracy theorizing and all, I'm not saying I have any evidence or examples or anything like that. But yea, I could totally see something like this happening on this community site. If the policy doesn't change it would be a bummer as I'm sure a lot of people will be hesitant to share their ideas and works with each other out of some paranoid fear that it will be stolen by the man. It would be awesome if gamers could post up and share there works fearlessly, the community would most definitely thrive. |
| #3calronmoonflowerSep 04, 2009 23:18:19 | It's to cover their butts in case they produce something similar to content posted here. |
| #4PromSep 04, 2009 23:26:15 | If it starts happening most of use who check the forums will spot it. Everytime I post stuff on the internet I assume someone will take it. That's the point I want others to have access.
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| #5RUMPLESTIXSep 04, 2009 23:31:00 | Didn't the previous agreement cover content posted on the forums in the same way? I could swear that a while back on the old forums I saw this same debate going on. |
| #6mikroponeSep 04, 2009 23:32:27 | True, true... I guess the paranoid will be paranoid regardless. The covering of one's ass is the explanation that makes the most sense for this policy. Haha |
| #7calronmoonflowerSep 04, 2009 23:37:52 | Didn't the previous agreement cover content posted on the forums in the same way? I could swear that a while back on the old forums I saw this same debate going on. Back when I first join WotC owned everything that was posted and no rights where reserved for the poster. So they could in theory sue you for using you own work if you posted it first. |
| #8Seeker95Sep 05, 2009 7:13:09 | by the User Content section current Terms of Use, anything uploaded effectively becomes property of WotC indefinitely and for free, and they can do what they like with it and share it with the world! It's always been that way. And for the most part, is that way on all publisher-owned forums. It is a liability mitigator. WotC is on a one-year-out (and sometimes even more) publishing schedule. They need to prevent folks from suing them for publishing something that they might have posted on these forums even if the WotC writer never saw it. In my 8 years on these Boards, I have seen only two ideas here first and in a WotC book second. And I doubt it was WotC lifting the ideas, because they fit in with the rest of the books they were in. |
| #9lokiareSep 05, 2009 23:52:31 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. "By allowing me to post on these forums you are agreeing to the following: All material that I post is uneqivically owned by me. In order to use any of the content that I post, you must contact me and negotiate a royalty payment. Also I am not responsible for anything ever." That will cover just about anything that WotC can throw at you. Its the same concept as "by using this software..." that is put onto every game. |
| #10calronmoonflowerSep 06, 2009 0:44:47 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. I think this is reaching the point of bashing. "By allowing me to post on these forums you are agreeing to the following: All material that I post is uneqivically owned by me. In order to use any of the content that I post, you must contact me and negotiate a royalty payment. Also I am not responsible for anything ever." No it will not. You must agree to the contract before you post. You cannot attach a disclaimer to your posts to get out of it. If you actually get WotC to agree that's different, but they must approve it. |
| #11lokiareSep 06, 2009 4:31:31 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. Actually they do agree, by not banning you from the site, all completely legal. Its exactly what software companies do. Grab your nearest software box and read the last page of the manual. It basically says something like the following "by using this software you agree...." All your doing is protecting your intellectual property. If it makes you feel more comfortable you can put a clause in there that says if they agree that this agreement supercedes any other previous agreement. That takes care of the agreement that you signed to get into the forums. |
| #12RUMPLESTIXSep 06, 2009 8:52:05 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. That is one of the worst cases of logic that I have seen. It is simply invalid. When you "agree" to accept the user agreement you are making an active decision. The decision is an active inclusion of yourself into the agreement. They do not agree by not actively banning you from the site. First, that is like sending someone a letter saying that you will assume they enter into an agreement with you unless they respond saying otherwise. Such letters are legally invalid. Second, look at the example of buying a car using financing. You could send a letter to the company telling them that you will no longer pay and that this new "agreement" supercedes your previous agreement. If six months down the line they take you to court and you immediately hand the vehicle over, you will still owe them the money for those six months despite the fact that they did not try to get it from you earlier. Basically Lokiare, what you are arguing is class warfare. "They are bad, greedy and evil because they are the big, bad, greedy company trying to take advantage of the little man." Try actually substantiating the arguments being made when throwing out accusations rather than just playing a mix and match game and saying that "A" implies "B" simply because you want it to. |
| #13calronmoonflowerSep 06, 2009 9:33:23 | Actually they do agree, by not banning you from the site, all completely legal. Its exactly what software companies do. Grab your nearest software box and read the last page of the manual. It basically says something like the following "by using this software you agree...." Except that those in charge of such decisions most likely will never see it, and thus cannot approve it. The one that do wouldn't have the authority to wave some else's rights. |
| #14tiwaztyrsfistSep 06, 2009 17:00:42 | By reading this message, you are agreeing to the "TiwazTyrsfist" E.U.L.A.
End User License Agreement All you IP are Belong To US! Make Your Time! Ha Ha Ha Ha! Goodmorning Gentlemen!
The Person who came up with EULAs should be hurt in new and unusual ways. |
| #15lokiareSep 06, 2009 17:16:52 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. Ok, make the EULA more specific: "If you use any of the material in my posts then you are agreeing to the following..." That way they are 'actively' choosing to agree. Also it doesn't bypass their agreement because their agreement just says they can use anything that you post, you are not saying they can't use what you post, all you are saying is that they must negotiate compensation ahead of time. The one doesn't invalidate the other. When I seem to be saying that a company is bad, greedy, and evil, that is what you are perceiving from what I am saying. What I actually mean is that the company is large enough and has enough managerial layers between the fans and the top that it cares nothing about the fans only the money. They are not evil, they are just a mindless machine trying to get money. When a project is proposed the first thing they say is not "how will this affect the fans?" its "How much will this cost and what are the risks of losing money on it, and how much will it potentially make based on current research?". Seriously if it came down to a choice of letting the fans down or making money WotC and any large company like that will take the money every time. |
| #16RUMPLESTIXSep 06, 2009 18:05:18 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. If you are going to comment on something as if you have read it I suggest that you do.
1. User ContentBy posting or submitting any text, images, designs, video, sound, code, data, lists, or other materials or information (such User-submitted content, collectively, "User Content") to or through a Site, including without limitation on any User profile page, you hereby irrevocably grant to Wizards, its affiliates and sublicensees, a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, and fully sub-licensable license, to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (in whole or in part) in any media and to incorporate the User Content into other works in any format or medium now known or later developed. The foregoing grants shall include the right to exploit any proprietary rights in such User Content, including but not limited to rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction.
1. It is irrevocable so you cannot back out or change it. And yes, you are blaming it on the big, bad, evil company. 1. Because you attacking it as a mindless machine only trying to get money. 2. This avoids the reasoning placed that it is only an attempt to save themselves from being sued. And you know what, there may be only a few people in charge of WotC but there are thousands of individuals who post on these forums. So, there is a much higher likelihood that there will be individuals among the crowd of posters who lack ethics and would attempt something underhanded given the opportunity. The population of wizards members is large enough that it can be an expectation that such individuals exist within the community and therefore precautions need to be taken. 3. Because these accusations are thrown out without any evidence that the company has ever used its agreement in such an underhanded manner. It is a mix and match saying that one implies the other when it does not.
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| #17Seeker95Sep 06, 2009 18:42:32 | Lokiare: Go ahead and do that. See where it gets you. If you (the reader; no specific individual) ever intend to actually publish the material you feel tempted to share on these Boards, don't share the material on these Boards. It really is that simple. |
| #18lokiareSep 06, 2009 22:12:53 | Its just basic corporate policy (greed). Don't read too much into it. Unless of course your a publisher and actually want to use what you write in that case simply put something like the following at the en d of each post. Actually if you care to search through my posts from before the DMG2 preview came out I suggested a way to have branching skill challenges, this was promptly incorporated into the DMG2. Several people along with myself have suggested ways to create more depth and get away from 'dungeon delves' which will no doubt if they are not already, they will be incorporated into the DMG2 and DMG2 preview. There are several other ideas that I posted of which I can't recall right this minute that I have posted as suggestions that have been incorporated into various products by WotC. Saying they won't do it is ignorant. If they wanted to protect themselves they would put something in the ToU that went the way the GSL did with the "...if we come up with the same thing the one that publishes it first will have rights to it, if it is published at the same time WotC has priority..." kind of stuff. Look it up in the GSL if you don't believe me. They have that there so that they can mine ideas and it will give them more income. Simple as that. Also if you do some research you will find that more than 3-4 layers of management leeches away any care about the actual product, and the emphasis switches from the products and fanbase to making money alone. Its not some kind of wild accusation I'm making, its a general business principle. So simply WotC is just after the money, there are many other ways to approach protecting IP (intellectual property) than what the ToU lists. That is the most draconian method possible to protect their 'rights'. Not only that but its plainly illegal. Anything that is termed 'art' is protected under certain laws that state you can explicitly tell anyone (even people that have the 'rights' to use your work) not to use your work in a way that you don't approve of. So their ToU under those laws is pretty much invalid. |
| #19RUMPLESTIXSep 06, 2009 22:37:25 | So, is the DMG 2 out? They specifically said that you came up with it (the branching skill challenges bit, I will have to look at it because it sort of sounds similar to some ideas I have had...are you stealing from me?) and you know for certain that they were not working on the same thing independently? You are certain (with proof) that they have incorporated things that you and others came up with, that they in no way developed it independently, and that it will be included in a preview that is not out yet. Seeing is believing. Pull out and post the urls to all this information and proof. If you are having trouble with the wizard search just use google. In fact, I am calling you out as proving the bit that they must protect themselves from those who will try to cause them grief over things they develop. Why? Finally about this: "are several other ideas that I posted of which I can't recall right this minute that I have posted as suggestions that have been incorporated into various products by WotC" The number of things they have incorporated that you are taking claim for is too damn big. They should owe you the sun (according to you and all the things you have listed) and I am calling bullshit on your claims. Put your money where your mouth is and prove it. Pull out the posts and the dates of the incorporations. Don't make such claims if you are not willing toback them up yourself because I am not going to look for you. Your talk about what they do and don't do for money isn't worth a hill of beans. Companies will often go to great lengths to prtevent troublemakers from causing them trouble which from the sounds of your claims you would do. So, thanks for proving my case here. You never addressed that possibility (which is still about money) with an answer worth a hill of beans and still say they are doing it just so they can steal ideas. Further do not presume to lecture me about levels of management. I am familiar with many levels of management and how their operations work in many different fields. So, save your lectures for people not bright enough to see through the wool you are trying to pull over their eyes. |
| #20calronmoonflowerSep 07, 2009 1:21:15 | @ Lokiare, please cut out the nested posts when you quote. You posts are growing absurdly long. So, is the DMG 2 out? It should be finalized by now, if not going into print. I'm not sure what Lokiare meant by branching skill challenges, but Draconomicon has stuff much like what I saw in the preview. |
| #21GrinningGrigSep 07, 2009 14:38:49 |
This makes sense and I suppose I don't blame them for this on the public forums. But on the "private" ones? (Ones you need an invite to see.) Perhaps a clause specifically saying we can't sue them for plagiarism of items posted would suffice? But as it stands, they can publish, say, an original monster shared among friends "privately" verbatim, or an original work of art. And they could legally sue the original author or artist if they latter published the work themselves. Plus they could legally quote entire posted conversations... even on the "private" forums. Again, as the starter of this thread I don't expect WotC to do any such thing. But I ask them to amend their Terms of Use so as not to gain the rights for such extremes (and thereby remove them from original authors/artists). |
| #22calronmoonflowerSep 07, 2009 16:45:32 | The current version of the user content clause allows you to still use your own user content after you post it here. However the clause in section two allows you to print and use other posters IP, but not to use it commercially. |
| #23Seeker95Sep 07, 2009 21:30:58 | And they could legally sue the original author or artist if they latter published the work themselves. No they can't. Well, they could sue, but they couldn't win. Nothing in the EULA prevents you from commercially publishing your original material. It just prevents you from successfully suing them if they choose to publish the same thing after you post it on their forums. |
| #24lokiareSep 07, 2009 21:56:14 | And they could legally sue the original author or artist if they latter published the work themselves. Which is still theft of intellectual property. I don't want to have to dance around things when I want to describe something. They need to take it out. They need to then put something in along the lines of "if we publish something and it was posted in the forums and it was not published by a 3rd party, then we have the rights to it." or "If you wish to retain the rights to your intellectual property you need to preface (or postface) you posts with 'This intellectual property is copyright {insert name here}. All Rights Reserved." |
| #25WebsterSep 07, 2009 22:01:53 | The copyright notice is on the bottom of every page. Then you get into the sticky situation of posting copyright material if you're going to claim copyright. :D If folks are that worried, they shouldn't post anything on the internet at all. |
| #26Neutronium_DragonSep 08, 2009 10:16:30 | > Which is still theft of intellectual property. You're almost certainly in 'derivative work' territory if you're posting something pertaining to D&D, whether or not you do it on the official D&D forums. WotC could probably assert a claim to ownership of anything of that sort regardless of where it's posted, but thankfully they're not the-bad-days-TSR. |
| #27mudbunnySep 08, 2009 10:59:38 | Which is still theft of intellectual property. That's only if you hold the point of view that if someone comes up with an idea that resembles something that you also came up with that thy had to have stolen it from you. Much more likely is that given the confines of the D&D "space" for innovation, creative people will come up with the same thing. The phrase in the EULA protects both sides. It protects WotC from being sued by "I made this first" people, and it provides an environment for people to post things that they like and, should they desire, profit from it afterwards. |
| #28ophiteSep 08, 2009 12:27:05 | If you wish to retain full control of your IP, don't publish it on public message boards. Simple as that. This is not a normal consequence of posting to a public message board, and the language of the EULA is vastly overdrafted. It purports to snatch almost all of a poster's IP rights. Though a lesser restriction might be valid, a contract purporting to take intellectual property (of admittedly minimal value) from anyone who makes it available it is almost certainly unconscionable. Especially in Washington after McKee, or in the 9th Circuit after Davidson. It'll put a barrier and a boatload of legal fees between suing and getting money for the theft, sure. But don't pretend the law is unambiguously on the side of your EULA. It's not. And it's getting worse for you (and better for the consumer) every day.
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| #29Arawn76Sep 08, 2009 12:40:17 | Whilst I hesitate to speak for him I believe Mudbunny simply means that posting your idea or IP on a public forum is hardly the best way to insure your control or retention of it. Not that someone can or will take it from you. And it's getting worse for you (and better for the consumer) every day. It's worth noting that Mudbunny is not a wotc employee (or so I believe). |
| #30wrecanSep 08, 2009 13:36:33 | This is not a normal consequence of posting to a public message board But it is a normal consequence of publishing to a message board owned by a producer of its own IP. It's the same reason movie companies don't open unsolicited manuscripts. don't pretend the law is unambiguously on the side of your EULA. It's not. And it's getting worse for you (and better for the consumer) every day. Do you have a cite for that somewhere? I'd love to read recent caselaw on this issue. |
| #31mudbunnySep 08, 2009 13:53:28 | This is not a normal consequence of posting to a public message board, and the language of the EULA is vastly overdrafted. It purports to snatch almost all of a poster's IP rights. From the best of my (non-lawyer) reading of the EULA, thje only right that is changed is that by posting your idea on the message boards, you are allowing WotC the right to use your work. You still retain the right to sell your work, publish it, distribute it how you want. Also, the idea that WotC employees are scouring the message boards looking for ideas to steal is, to me, quite laughable. And it's getting worse for you (and better for the consumer) every day. Note that I am not an employee of WotC. |
| #32ophiteSep 08, 2009 15:57:22 | But it is a normal consequence of publishing to a message board owned by a producer of its own IP. It's the same reason movie companies don't open unsolicited manuscripts. Same reason. Different method, and different general industry practices. "Not reading it" is a simple way to avoid getting sued for stealing an idea: there is absolutely no way you could have stolen it. "Having a mandatory irrevocable license to the IP" is another simple way to avoid getting sued: you've taken the rights you otherwise would've stolen legally. While I understand the impulse that led in that direction, it grabs rights well beyond what's needed to protect them from insane copyright trolls. The EULA here asks you to give up something "valuable," though quite unlikely to be actually sold, in exchange for absolutely nothing. There's no way a reasonable consumer would agree to the terms of that agreement. And, no, in this case, "ignorance of the law is no excuse" doesn't apply: if your only choice is to accept or reject terms pressed on you by a dominant party, the court actually looks into the terms of the agreement to determine whether there's substantive fairness there. This isn't the case everywhere, but adhesion contracts like EULAs are becoming more strictly regulated, especially on West Coast -- in Washington and California, in particular. Do you have a cite for that somewhere? I'd love to read recent caselaw on this issue. The most recent case on-point and in-jurisdiction is McKee v. AT&T; the legal cite is 164 Wash.2d 372. It doesn't address the exact question (mandatory licenses of IP rights) but it does go over a list of things that occurred in the actual contract in question that were substantively unfair.It's beyond the scope of the case (or any existing case law) to say that Wizards' boards EULA would be held invalid, but it's certainly seems like it's in a similar danger zone both procedurally (you don't have to read it for it to purport to bind you) and substantively (it purports to cause you to surrender property rights well beyond those rights necessary to operate the boards.)
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| #33lokiareSep 08, 2009 18:09:50 | But it is a normal consequence of publishing to a message board owned by a producer of its own IP. It's the same reason movie companies don't open unsolicited manuscripts. Nice! I knew it wasn't legal I just couldn't put it into such succint language. |
| #34calronmoonflowerSep 08, 2009 19:26:02 | But it is a normal consequence of publishing to a message board owned by a producer of its own IP. It's the same reason movie companies don't open unsolicited manuscripts. No it isn't. That is a fact that would need established in court AFTER you are sued. It would likely stop and judgments, if you can prove it, by not the legal fees of getting sued. There is a term "nuisance value" or that it could be cheaper to settle a case rather than let the expenses build up getting a judgment in your favor. With the Terms of Use disclaimer you might be able to get the case dismissed before it even gets to court or have the no lawyer taking the case do to the plaintiff making a contract to allow WotC could do exactly what they are trying to sue WotC for. |
| #35RUMPLESTIXSep 08, 2009 20:39:27 | But it is a normal consequence of publishing to a message board owned by a producer of its own IP. It's the same reason movie companies don't open unsolicited manuscripts. From the judgment with emphasis added myself: "On June 18, 2004, Judge Bridges heard oral argument on the motions to compel and stay arbitration. He denied the motion to compel arbitration, finding the entire dispute resolution section of the agreement substantively unconscionable because of the provisions prohibiting class actions, shortening the statute of limitations, limiting damages, requiring confidentiality, and requiring the application of New York law. Judge Bridges found the unconscionable provisions were not severable from other provisions and declared the entire dispute resolution clause unenforceable." The fact that you don't have to read it had nothing to do with the decision. Second, what was considered unconscionable was clearly defined. Those elements are not a part of the user agreement and have nothing to do with whether or not the "surrender of property rights" is necessary to operate the board. The above post has no basis for saying that the the case can be applied to the user agreement. |
| #36ophiteSep 08, 2009 20:50:16 | No it isn't. That is a fact that would need established in court AFTER you are sued. Actually, to get into court on a copyright claim, you've got to first prove actual copying and misappropriation. If there's a blanket policy not to read unsolicited samples, you've a good defense right there. Additionally, the rules of a game aren't copyrightable material. So long as the developer didn't steal with cut and paste, a potential copyright claimant from the boards has a vanishingly small chance of being able to get a nuisance copyright suit through on any subject which Hasbro publishes. It's the fringes of the EULA where the damage actually occurs. Post a character? They own a license to it in perpetuity. Good luck trying to sell a non-exclusive license to a publishing compan. Write a little snippet or story? They own a license. Rules text? Sure, that too. Their EULA makes it possible for them to squat on every little bit of IP that comes through their common carrier. The only thing that keeps them from misusing their purported right is their own good faith. And, frankly, I don't trust good faith to produce self-restraint. There is a term "nuisance value" or that it could be cheaper to settle a case rather than let the expenses build up getting a judgment in your favor. Hasbro has its own legal department. Their legal costs are miniscule compared to a private plaintiff. They pay their attorneys whether they're litigating cases or playing Minesweeper. They can afford to continue filing motions to dismiss until the BS claim just goes away. With the Terms of Use disclaimer you might be able to get the case dismissed before it even gets to court or have the no lawyer taking the case do to the plaintiff making a contract to allow WotC could do exactly what they are trying to sue WotC for. Considering that the snippets of game text posted here are extremely unlikely to be saleable, the likely judgments aren't likely to be worth it to any attorney. Unless, of course, in the unlikely event that the EULA inadvertantly sweeps up the next Harry Potter: something that a non-contract you didn't read, and for which you didn't receive anything, shouldn't be able to do. |
| #37wrecanSep 08, 2009 20:53:51 | The EULA here asks you to give up something "valuable," though quite unlikely to be actually sold, in exchange for absolutely nothing. In exchange you get access to their forums. That is not "nothing." It is valid and legal consideration. adhesion contracts like EULAs are becoming more strictly regulated, especially on West Coast -- in Washington and California, in particular. That's not what your case -- McKee v. AT&T says. You said it doesn't "address the exact question." It doesn't even address any question near the universe of the exact question. In McKee, the plaintiff had a problem with his phone bill. He sued AT&T in a class action, claiming that lots of people like him are being charged inappropriately. (A class action is lawsuit where you sue not only on your behalf, but on behalf of a class of plaintiffs, most of whom don't even know they are plaintiffs in your lawsuit.) McKee lives in Washington. AT&T is a New York company. McKee's agreement and the agreement had many provisions that Washington state had prohibited from being put into an agreement. Specifically, Washington bars contractually waiving the ability to bring a class action, limits punitive damages, prohibits contractual clauses in which only one side need pay counsel fees, prohibts clauses that prevent parties from discussing its terms, and contractually limits hw long you have to sue. The court first resolved some initial issues -- whether New York or Washington law applies (Washington), and whether federal law pre-empts Washington law (it doesn't). Once those issues were resolved, the result was pretty obvious. The clauses of the contract that violated Washington law were stricken. The court ended up striking the entire dispute respolution portion of the agreement because the improper portions were too intertwined with the valid ones. But -- and this is the important part -- the court did not state that the agreement as a whole was unenforceable. As the court said "We hold that the balance of the agreement is enforceable subject to this opinion." |
| #38ophiteSep 08, 2009 21:31:07 | I am not offering legal advice. I am not purporting to offer legal advice. I also haven't a clue how I could "advise someone to violate the EULA," in that all I'm doing is criticizing what the EULA purports to do, which I can't do without explaining why I think it was drafted poorly. Exactly what legal advice do you think I'm giving? Telling people to post characters on the board, wait for WotC to sue, and then challenging the EULA in court? You're accusing me of doing something serious, and you're doing so in extremely bad faith. I'm also not saying that adhesion contracts are generally unenforceable. However, giving away a reasonably substantial property right through an 'I Agree' button, in exchange for utterly nominal consideration, isn't the sort of thing a user would expect a EULA, and especially a EULA attached to a message board, to do. Especially when current accounts don't carry a warning that the terms and conditions have changed. The West Coast, including Washington, has been looking more and more skeptically on adhesion contracts. Unilateral arbitration clauses went out the window a decade ago. Class action waivers and mandatory bilateral arbitration are out the window now. It's no longer the case, even in the 6th Circuit, that the fact that your cat walked on the 'I Agree' button means you sold your soul to the guy who drafted the contract. So it's weird that you're attaching such a talismanic significance that the types of clauses that are found unconscionable while ignoring the reason why: they stack the deck for the guy that wrote the contract while screwing the consumer*. Which is exactly what this EULA's doing. Like giving away class action rights and agreeing to binding arbitration, signing away an unconditional, irrevocable license to anything you post on the boards isn't something that the average consumer (a) wouldn't understand the consequences of, and (b) wouldn't expect to be doing through an automatic act. The only close comparison I can think of is telecommunications "slamming," which isn't legal either. If you can find me a case where a copyright license has been taken through an 'I Agree' button, I'll shut up and go away. But such a case doesn't exist. In every case I'm aware of -- Facebook and Photoshop briefly had EULAs that purported to do similar things -- consumer outcry forced the company to change their license before a single case could be brought to court. Rightly so. The clause isn't fair litigation-proofing, it's customer abuse; if it ever did end up in court, I'm willing to put money on the whole clause going out the window. * I'm willing to take the argument that this screws the consumer out of substantive rights rather than procedural ones, but ... seriously. Is Hasbro really going to bring that one in court? |
| #39mudbunnySep 08, 2009 21:41:21 | I'm also not saying that adhesion contracts are generally unenforceable. However, giving away a reasonably substantial property right through an 'I Agree' button, in exchange for utterly nominal consideration, isn't the sort of thing a user would expect a EULA, and especially a EULA attached to a message board, to do. Especially when current accounts don't carry a warning that the terms and conditions have changed. What property right are they giving up?? (Not being snarky or sarcastic here. My brain has gone on vacation...) |
| #40ophiteSep 08, 2009 21:49:13 | I'm also not saying that adhesion contracts are generally unenforceable. However, giving away a reasonably substantial property right through an 'I Agree' button, in exchange for utterly nominal consideration, isn't the sort of thing a user would expect a EULA, and especially a EULA attached to a message board, to do. Especially when current accounts don't carry a warning that the terms and conditions have changed. It's not exactly taking something from you, I guess. The way I read it, WotC takes an irrevocable license, which they can do whatever they like with. This leaves you with a copyright to whatever you put up, but you can't then sell an exclusive license. That, in terms of saleability, is next to worthless. I don't exactly expect the Mona Lisa or Harry Potter to show up here, but they could (for instance) slap the avatar you designed and uploaded on the cover of DMG 8, and you couldn't say boo. I can't imagine why you'd expect that you'd given that away by pressing "I Agree." I'm not sure why more people don't object. |
| #41mudbunnySep 08, 2009 22:02:23 | It's not exactly taking something from you, I guess. The way I read it, WotC takes an irrevocable license, which they can do whatever they like with. This leaves you with a copyright to whatever you put up, but you can't then sell an exclusive license. That, in terms of saleability, is next to worthless. Here is my guess: The overwhelming majority (to the point where it might as well be everyone) of the people aren't interested in publishing what they post. They really don't care whether or not WotC takes something they work up or not. The few people that are considering publishing something that they create are smart enough to have read the EULA and are fully aware of what it contains. They thus do not post things on the forums that they think that they might want to publish. After all, it isn't like the clause is hidden deep in a paragraph or disguised by confusing terminology. |
| #42WolfStar76Sep 08, 2009 22:51:04 | Just to dip my toe in the water, I can see both sides of the argument here, I think a little common sense is what's most called for. If you have content you think is of earnest value (IE - you might at a later date seek to have it published, especially if the publishing would be by a company other than WotC) you'd be well advised to simply not post it anywhere on this site. On the other hand, you should also be well aware that content posted here is going to be a needle in a haystack - truly valuable (publishible) content that isn't developed in paralell with efforts already underway inside WotC are going to be even more so. While "security through obscurity" isn't ideal - given the volume of content on this community site it's a fairly reasonable/comfortable bit of security. Ask anyone who's ever decried "WotC doesn't even read these forums". Lastly, I personally find that concerns of WotC stealing people's ideas is a little unfounded. Don't get me wrong - it's actually wise to question these things. However, I look at the project from the end of 3E "The Grand History of the Realms" - a project put together by a Forgotten Realms fan to catalog every shred he could find of FR timeline/lore. As I understand it this was all content FROM WotC, he just marshalled it into one simple timeline. WotC could have done the exact same thing, it was all their content - but instead of stealing the idea or even the compilation - they brought the "creator" on-board, paid him, and expanded on his concept. That doesn't strike me as a sign that WotC is going to datamine their own forums for "one more Monster for MM3" and then steal the IP just because they can. WotC (in my experience) actually wants to encourage people to contribe their own ideas, and wants to credit people where credit is due. "Stealing' IP via the forums would garner them a nigh-unlimited amount of ill-will. It doesn't make sense in the long run, and it isn't what I'd expect from the people I've met and shaken hands with. It may well be that the ToS needs to be toned down a bit - lawyers tend to over-reach when possible as a smattering of over-protecting is better (to them) than a smidge too little. I leave that discussion to people more inclined to understand all the legal-ese and who have the patience to read such terms and/or compare them from site-to-site to see where the best middle ground is. |
| #43RUMPLESTIXSep 09, 2009 0:16:56 | About this:
We don't need to find a case where it has happened. You are the one trying to make the argument that laws will be applied the way that you say they will because of court cases. You have thew burden of proof to show that court cases act as you say they do, not us. Mentioning that another company gave up something due to public outcry means they listened to what some of their customers said they wanted. There is nothing in this to draw a conclusion that it would have lost in court. Nothing. This is a case of mix and match, saying one thing implies what you want just so that it will add to your case when their is no connection. Bad logic. I don't care if you stay or shut up and go away. I will just continue to poke holes in your arguments when you make them if you stay. You have yet to show any reason that this agreement is unreasonable by a legal standard, only by your own opinion. It is not one I share. |
| #44ophiteSep 09, 2009 1:34:02 | We don't need to find a case where it has happened. You are the one trying to make the argument that laws will be applied the way that you say they will because of court cases. You have thew burden of proof to show that court cases act as you say they do, not us. So. Why don't you start explaining to me how you think court cases relate to contract law? There's nothing that's determinative, sure. No one's let a case with a EULA puporting to give away a copyright license actually get to court. The few cases where a corporation's actually pulled that sort of nonsense in a consumer contract (see: Facebook, Adobe), they've dropped the EULA term due to extraordinary public outcry. This is because these terms are nuts. Taking a copyright license using a document you don't have to read -- or even know has changed to your detriment -- is as absurd as debiting your checking account the same way. There's a significant difference between surrendering a major procedural right (like the right to participate in a class action) and surrendering a major substantive right (like exclusive ownership of intellectual property you produce), sure. However: WotC just takes your IP when you click a poorly labeled button, or, in the case of legacy users, when you leave a box checked by default. On what grounds would you draw the public policy distinction between the two? |
| #45zammmSep 09, 2009 4:27:54 | Just to make a minor note here: the Terms of Use have not been changed recently, much less to the users' detriment. The current terms are several years old, and they're actually a step in the opposite direction--the previous terms gave WotC outright ownership rather than a license. (And IIRC, they sent out notification at that time of the change telling users about it.) While that step may not be far enough for many people's comfort, it's still a far better deal than we had before. If you want to talk about the terms being too severe, then you can do that, but it's misleading to talk about WotC changing the terms from under people.
It might be an interesting exercise to try to come up with some form of Terms which would protect WotC from suits in a manner similar to the current terms without stepping over the perceived line. |
| #46RUMPLESTIXSep 09, 2009 4:58:16 | We don't need to find a case where it has happened. You are the one trying to make the argument that laws will be applied the way that you say they will because of court cases. You have thew burden of proof to show that court cases act as you say they do, not us. Why don't I come up with something? I don't have to. You are the one trying to (dis)prove something as being legal. Simple logic. |
| #47wrecanSep 09, 2009 7:29:30 | I can't imagine why you'd expect that you'd given that away by pressing "I Agree." I'm not sure why more people don't object. Because most people don't post stuff to public message boards owned by a publisher that they plan on publishing themselves. Why don't you start explaining to me how you think court cases relate to contract law? Well, the court case you cited doesn't relate to the principle fo contract law you believe exists at all. in fact, as pointed out, it actually stands for the proposition that the irrevocable license provision in EULA is completely enforceable unless there is a specific State law making it unenforceable. Thus it behooves you -- who claims it might be unenforceable -- to show us some evidence of such a law. The few cases where a corporation's actually pulled that sort of nonsense in a consumer contract (see: Facebook, Adobe), they've dropped the EULA term due to extraordinary public outcry. Facebook and Adobe are not producers of IP. If, say, Random House Publishers had forums, you can bet your bottom dollar that they'd have a similar provision. But companies who don't sell IP don't need the provision, so they can take it out if enough people complain. Wizards is much less likely to do so, because selling IP is their bread and butter. WotC just takes your IP when you click a poorly labeled button, or, in the case of legacy users, when you leave a box checked by default. On what grounds would you draw the public policy distinction between the two? On the grounds that Washington State likes substantive due process rights (like class action) is worthy of a specific law, while substantive intellectual property rights (like IP licensing) are not. If you don't like it, you can take it up with the Washington State legislature. Actually, it is entirely possible that Washignton couldn't pass such a law if it wanted to. Intellectual property is goverend by federal law, which probably pre-empts State interference. At any rate, as Rumplestix pointed out, if it's your contention that the pereptual license provision in Wizard's EULA is unenforceable, it's your responsibility to actually prove it. So far you've managed to cite a case that indicates the opposite. When you make claims on a public forum like this, you are encouraging people to act as if EULA is unenforceable, when that is probably not the case, and that is very irresponsible. Already, Lokiare has indicated on this thread that he accepts your interpretation that the perpetual license provision is unenforceable. If Lokiare were to act upon that belief and, say, sue Wizards for copyright infringement because he believes Wizards stole an idea he posted on these forums, and then were to get sanctioned for bringing a frivilous lawsuit, I think some of the moral responsibility for those sanctions would be yours for posting crackpot legal theories. |
| #48lokiareSep 09, 2009 7:37:16 | I can't imagine why you'd expect that you'd given that away by pressing "I Agree." I'm not sure why more people don't object. If I did that and got sanctioned, I would then sue the U.S. legal system fro breaking international copyright laws. Since international copyright laws don't allow the permanent transfer of rights to copyrighted material. |
| #49wrecanSep 09, 2009 10:22:23 | Lokiare, please stop quoting entire posts when you want to respond to only a small portion of it. If I did that and got sanctioned, I would then sue the U.S. legal system fro breaking international copyright laws. Since international copyright laws don't allow the permanent transfer of rights to copyrighted material. Citation, please, for the idea that international copyright law forbids the contractual transfer of copyrights. That sounds like another of those internet memes that take on a life of their own despite a lack of factual basis. |
| #50kamelSep 09, 2009 11:27:51 | I can't imagine why you'd expect that you'd given that away by pressing "I Agree." I'm not sure why more people don't object. The idea of not posting what you plan to publish has come up a few times, and of course makes sense, but it doesn't matter whether you plan to publish or not. If I share something that I have no plans to publish and WotC takes notice and decides to use it then it suddenly has value and I'm potentially SOL. Like the avatar art/book cover example given somewhere above. (For the record, any art I produce would be of the stickman variety and not usable anyway) Of course I don't really expect WotC to behave in that way, as pointed out it would be shooting themselves in the foot with the negative blowback that would happen. But if you are concerned about it, as written, the EULA forces you to either not share anything or to direct people elsewhere (where you still retain exclusive rights) to see it, both of which work against the whole 'community' thing. Not being a lawyer, I don't know how exactly I would reword it to both protect WotC against lawsuits while still granting the creators of IP shared here exclusive ownership of their work (whether they plan to publish or not) |
| #51mudbunnySep 09, 2009 12:15:50 | Not being a lawyer, I don't know how exactly I would reword it to both protect WotC against lawsuits while still granting the creators of IP shared here exclusive ownership of their work (whether they plan to publish or not) Their really is no way. What with the ratio between posters and WotC employees, you are very close to the "infinite number of monkeys with an infinite number of typewriters" situation. Eventually, someone will post something on the forums that will closely resemble something that is going to be published by WotC. (See the claim by Lokiare upthread, for example). also not a lawyer |
| #52mudbunnySep 09, 2009 12:19:38 | Well, I suppose there is a way, but it involves none of the WotC R&D/development staff actually reading the boards. There are some authors that do that, (Anne McAffrey I think), because they have been sued by fans claiming "S/He stole my idea!!". As someone (wrecan I believe) said, that is why most movie companies return unsolicited scripts unopened. |
| #53ophiteSep 09, 2009 13:12:05 | Well, the court case you cited doesn't relate to the principle fo contract law you believe exists at all. in fact, as pointed out, it actually stands for the proposition that the irrevocable license provision in EULA is completely enforceable unless there is a specific State law making it unenforceable. Wait. What? No. The underlying suit in McKee is based on a Washington Consumer Protection Act claim. Substantive unconscionability is an judge-made rule that, as far as I know, exists in all 50 states. Because you've accused me of giving legal advice to others on the thread -- rather than just criticizing the EULA -- I'm uncomfortable having this discussion in detail, in public. I am, however, willing to explain this to you in PM. Facebook and Adobe are not producers of IP. If, say, Random House Publishers had forums, you can bet your bottom dollar that they'd have a similar provision. But companies who don't sell IP don't need the provision, so they can take it out if enough people complain. Wizards is much less likely to do so, because selling IP is their bread and butter. |
| #54wrecanSep 09, 2009 13:46:35 | Wait. What? No. Yes, it is. "Judge-made rules" are otherwise known as "common law". However, unconscionability is also defined by statute. In the McKee case, both were invoked by the Washington court in order to strike down portions of the agreement between AT&T and McKee. (It should be noted that New York law would not have found any of the stricken provisions unconscionable, which is why AT&T argued that New York substantive law should appl to the dispute.) However, and this is the important part, the Washington court specifically stated that it would enforce the portions of the agreement that were not voided for unconscionability. It also means that, contrary to what you had indicated, unconscionability is not dependent on the notion that the agreement is one of adhesion. Rather, the court in McKee found unconscionability based on stautory and public policy bases specific to the provisions being stricken. What this means is that it is insufficient for you to simply vaguely reference the doctrine of unconscionability, unless you can show that anybody has found a provision like the perpetual license provision unconscionable. I am aware of no court that has found perpetual licenses to be unconscionable. I am, however, willing to explain this to you in PM. No need. I understand the law on this issue just fine. The EULA already limits damages to the amount you paid for the service (or $0), provides for payment of legal fees when you lose, and cuts the statute of limitations on any board-related claim to one year. It also has an "unsolicited idea submission policy," which is in all caps. Assuming you beat the unsolicited idea submission policy, you already get nothing in the unlikely event that you win. Why is that protection insufficient? Because the no-damages provision is one that is likely to be stricken by courts as unconscionable, for reasons set forth in McKee! The entire case hinges on a judge-made rule that prevents enforcement of unduly harsh terms. Yeah, but not a no-perpetual license provision. That's just rank speculation on your part. So, in the event that a person who read this thread gets it in their head to post copyrighted material, finds an attorney insane enough to try to blow through all the EULA terms for a potential five-figure judgment, and then gets slapped with sanctions for a frivolous lawsuit, I am morally responsible for the damages caused by something buried five layers deep in a purely hypothetical situation? If you think the EULA position is so "smelly" why do you think it would be an insane thing to do? You seem to be saying this provision is so obviously invalid that Wizards would be insane to try to defend it in courts in their own home state of Washington! |
| #55EscherEnigmaSep 09, 2009 14:23:04 | Gee, a user agreement that's not favorable to the user. Why is this a surprise to anyone? Long answer short: this is WotC covering their ****. The only other way they could reasonable do so is to flat out prohibit any of their designers from getting within 20 feet of the message boards. If you care about this, then don't put up your creative works here. It's as simple as that. Hell, that's good advice for any creative endeavor anywhere. And if you put up something that does get used? Well, you should have thought of that before hand. Protect your creative works, and don't share them on terms you don't think are acceptable. |
| #56Dane_McArdySep 09, 2009 14:55:55 |
The very first rule anyone doing any type of publishing or creating learns. It's really simple. Sheesh. |
| #57ophiteSep 09, 2009 16:36:19 | Because the no-damages provision is one that is likely to be stricken by courts as unconscionable, for reasons set forth in McKee! This is exactly what I meant when I said that you're taking a bizarrely talismanic view of what constitutes an unconscionable EULA provision. You are trying to tell me, with a straight face, that it is unconscionable to restrict damages to $0 using a EULA unless the EULA begins by confiscating the very property that is potentially the subject of a suit. This produces a result identical in every relevant way to the unconscionable provision, except that it also confers an IP license on the drafter of the contract. What possible public policy rationale would explain this result? |
| #58wrecanSep 09, 2009 17:26:34 | You are trying to tell me, with a straight face, that it is unconscionable to restrict damages to $0 using a EULA unless the EULA begins by confiscating the very property that is potentially the subject of a suit. EULA doesn't confiscate property. Stop using loaded terms. McKee states that Washington State would not allow someone to contractually waive their right to seek punitive damages. I think that is a decent indication that they might not let someone waive their rights to seek any damages. But that's because all of Washington State's public policies, as identified in McKee, deal with process (class action, arbitrability, statutes of limitations) and remedies (punitive damages). What you're discussing is the effect of a res, a piece of property. Specifically, intellectual property. Nothing in the McKee decision indicates that there is a Washington State public policy on that subject. McKee says nothing about intellectual property at all, or what Washington State's public policy is with respect to what intellectual property rights a person can or cannot contract away. You need to come forward with some sort of citation that indicates that Washington State has a public policy about intellectual property that might indicate a refusal to recognize irrevocable licences of IP. You have not done so. I don't think such a public policy exists in any State in the Union. Here's one article indicating at least one federal appellate court has no problem enforcing an irrevocable license: Irrevocable License Enforceable Even in Face of Material Breach And in this case before the Ninth Circuit (which is the federal appellate court that includes Washington State), the Court found that an implied software license was irrevocable. There, the plaintiff had developed software for the defendant. After the relationship ended, the defendant altered the software and continued to use it, even though the plaintiff had repreatedly told him they did nto have his permission to use his copyrighted software. The Court disagreed, finding an implied license to use the programs even after their relationship terminated. The Court then found that this license was irrevocable. |
| #59RUMPLESTIXSep 09, 2009 17:40:14 | Because the no-damages provision is one that is likely to be stricken by courts as unconscionable, for reasons set forth in McKee! My first suggestion is to quit trying to dance with words. talismanic view...confiscating property...potentially the subject of a suit... Now, let's take this apart... Identical to the unconscionable provision in McKee? Let's look at those unconscionable provisions from McKee:
One sided or overly harsh? What does one get? Free and unlimited use of the messageboards and countless groups and memberships. Further, use does not require that anything of value be used or given up. You are under absolutely no obligation to post anything of value. So, although you give up rights, you gain full use of the features without being required to post anything of value and give it up. You can post trash all day, day after day, and never post anything of value to WotC. That is the point. You do not have to give anything up to join. You do not have to give up anything of value to post. Anything that you find of value you may decline to post. However, if you choose to post something, you then lose some control. To go further, in these cases where it was applied, there were specific things that the suitor was forced to supply with a monetary value.:
The only thing that WotC charges is that you give them some rights to posted material. In the case of McKee he received a bill for a tax that he did not believe he should have paid because the utilities tax was being applied across the lines to which it was written to cover. The limitation was on recovery of over charging, legal fees etc. This was in a binding arbitration. Note: You is used in the general form in the following description. There is no limiting of damages that can be recovered in this agreement. You pick and choose what you give to WotC rather than WotC sending you a bill. You can pay them whatever you choose to pay them. There is no arguument to be made that WotC is limiting the recovery of damages. WotC has inflicted no damages. WotC did not post the material in question and WotC held no one to an obligation to post the material that would be in question in a case. There are no damages to recover. Next, the confiscation of the property that is the potential subject of a suit. This makes absolutely no sense for being unconscionable. Does that mean one cannot buy a car and keep it because it would be the confiscation of the property (the car) that might be the subject of a suit? That is nonsense. If their is no coercion (gun to the head etc., and there is none here in the WotC case...) or falsehood on my part and I buy a car for what it is placed for sale, I own it. It is mine. There might possibly be an exception for clerical errors such as not putting enough zeroes on or something of that nature. However, if the owner willingly parts with the car for the money and both participates sign on the line, the deal is done and valid. That is the key. The claim of unconscionability is made by saying that you give up the rights to gain use of the site and thus you are giving up your rights and cannot ask for them back therefore it is unconscionable. The claim of unconscionability is made because you give up the car to gain the money and thus you are giving up your rights to the car and cannot ask for it back therefore it is unconscionable. Utter nonsense. |
| #60ophiteSep 09, 2009 18:10:55 | What does one get? Free and unlimited use of the messageboards and countless groups and memberships. Seriously? "Free and unlimited use of the boards?" In "exchange" for an unlimited license to any idea you have, you receive the ability to use a forum that's effectively a common carrier. Further, use does not require that anything of value be used or given up. You are under absolutely no obligation to post anything of value. So, although you give up rights, you gain full use of the features without being required to post anything of value and give it up. You can post trash all day, day after day, and never post anything of value to WotC. That is the point. You do not have to give anything up to join. You do not have to give up anything of value to post. Anything that you find of value you may decline to post. However, if you choose to post something, you then lose some control. Sure, you don't necessarily have to give up anything of value. However, nothing but good faith prevents Hasbro from taking advantage of it if you did. Is inadvertently surrendering a property right something that you really believe a EULA should be able to do? If so, why not (for instance) a EULA that gave Hasbro a future right to debit $100 from your checking account? Why do you think there's a difference? It would be one thing if, as per their EULA, they did not receive unsolicited submission of ideas. But there are a half-dozen forums here where the point is the unsolicited submission of ideas. Eery campaign setting that's been posted to the campaigns board, monster that's been posted to the races and monsters board, character that's been posted to the character development board, and original piece of artwork used as an avatar, is now irrevocably licensed to WotC. This is insane. This also isn't likely what they meant to do: the EULA's clearly overzealously drafted by a first-year associate that didn't bother to read the relevant case law. But they did it. And they shouldn't've. |
| #61ophiteSep 09, 2009 18:22:08 | And in this case before the Ninth Circuit (which is the federal appellate court that includes Washington State), the Court found that an implied software license was irrevocable. There, the plaintiff had developed software for the defendant. After the relationship ended, the defendant altered the software and continued to use it, even though the plaintiff had repreatedly told him they did nto have his permission to use his copyrighted software. The Court disagreed, finding an implied license to use the programs even after their relationship terminated. The Court then found that this license was irrevocable. This is wrong on every possible level. This is a federal case founded in (apparently) California contract law. Even if it were a Washington case, it's not binding on the Washington Supreme Court. Even if it were binding on the Washington Supreme Court, it's an employment law case. Even if it were a EULA case and not an employment contract, it involves an implied IP license due to an employment relationship rather than an express provision. Even if it did involve express licensing, the difference in the bargaining position is nowhere near as exaggerated (nor the term as unforeseeable) as the relationship here. |
| #62ophiteSep 09, 2009 18:28:05 | In contrast, provisions that try to restrict one's remedy in the case of a breach of an agreement (i.e., prohibiting class actions, restricting the time you have to sue, restricting how much damage you can receive, limiting punitives, etc.) may possibly violate public policy, because public policy most often deals with procedural remedies, not substantive rights. I'm sorry. Did you not read Williams v. Walker-Thomas in first-year Contracts? The prototypical substantive unconscionability case in American law deals with the surrender of substantive (rather than procedural) rights. |
| #63wrecanSep 09, 2009 20:29:27 | This is wrong on every possible level. I didn't say it was biding on Washington. I just pointed out that it's in the Ninth Circuit (which includes Washington), which is significant, since you had originally said that California and Washington (two of the States included in the Ninth Circuit) would be particularly hostile to pereptual licenses. And yet here is the NInth Circuit applying California law to imply a perpetual license in the absence of any written license agreement at all. I'm sorry. Did you not read Williams v. Walker-Thomas in first-year Contracts? The prototypical substantive unconscionability case in American law deals with the surrender of substantive (rather than procedural) rights. I'm sorry but does this case involve a perpetual IP license? (No, it does not.) I never said unconscionability is limited to process and remedies. Only that the unconscionability discussed in McKee did. By the way, Williams did not actually hold that the contract in question was unconscionable. All it held was that the doctrine of unconscionability existed and then it remanded the case to the lower court to determine if the contract was in fact unconscionable. We're all still waiting for any case in which a perpetual license might be considered unconscionable. Surely, if you've read Williams, you know that unconscionability is very very rarely invoked (successfully), even in Washington State. |
| #64Seeker95Sep 09, 2009 20:41:30 | wrecan wins the thread, and a lot of respect in the process. |
| #65ogrehooperSep 09, 2009 20:44:04 | Standard Terms of Service. Why upload anything to a public site if you don't want others to have access to it? Here are a few solutions: 1. - Leave the site or stop complaining as you obviously have already read the terms and already agreed to them thus destroying your argument against it 2. -Only upload horrendous ideas (which sadly 90 percent of the people who are complaining about this are full of...I have bad ideas too, I just don't have this ego frame of mind that the WotC police are going to steal everything I write) 3. -Realize its great and hope that all users who make great content find that content used to better the game we all love as a whole!
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| #66wrecanSep 09, 2009 20:47:23 | Now you've made me curious enough to expend some effort on this. |
| #67ophiteSep 09, 2009 22:53:07 | That's the only case addressing the unconscionability of perpetual licenses I could find after a brief search, but it's close to being on-point that anything you've suggested to date. Let's go back to first principles here, and see if we can come to some sort agreement. I'm a little overheated about this -- this is one of my big issues -- and shouldn't be sneering at you. First of all, cases from New York aren't relevant. You're citing a federal trial court, on a state law issue, from a state with a very conservative view of unconscionability. This is the feature of the law that drove AT&T to try to get into New York on their choice-of-law provision. It's understandable that you'd think that it was a federal law issue, but it's not: like most other transfers of property, it's state contract law, not the Copyright Act, that governs. Second, we're not talking about unconscionability of perpetual licenses in general. They're not: you can license a copyright for the entire copyright term, and you can probably do so under pretty unfair terms. But that's not what we're talking about. We're talking about unconscionability in clickthrough licenses. Because there's more procedural unconscionability (inability to bargain for different terms), a lower degree of substantive unconscionability is required to void contract term. This is where I'm drawing the distinction. I'm wondering why you think it's an unfair distinction to make. Third, Williams v. Walker-Thomas went back to the district court on remand -- there was a factual question about whether the contract was unconscionable at the time it was signed -- where it was presumably settled. There's no subsequent history. Is it be an honest reading of the case to say that the plaintiff probably had her furniture repossessed? Fourth, there's a reason that there's not a case on-point, and it's related to the reason why the law (in some places) is moving away from unconditionally upholding all contract terms in consumer adhesion contracts. Most corporations, for tactical reasons, don't put this sort of EULA provision to the test outside of arbitration. This is because there's a good chance of ruining the entire contract provision for everybody if the case goes to a court that can make binding law. You keep telling me that there's absolutely no chance that the copyright licensing clause is unconscionable. But you keep avoiding these questions. How does the result differ from limiting damages to $0, which you agree would probably be held unconscionable? How does the actual function of the clause differ from reserving the right to deduct an unspecified sum from your checking account at some point in the future? |
| #68booste_starlancerSep 09, 2009 23:27:07 | There's a reason I reminded everyone in my Alternity group that if there is any possibility that they will ever publish anything, don't post it in the group's house rules wiki. I'll most likely never publish anything so I don't have to worry about it, but some people fancy themselves game designers despite having played for decades and never publishing a thing. The main issue I would have would not be from a game rules standpoint. Game rules mostly develop communaly, and the argument that WotC doesn't pick anything up on these boards is ridiculous. Of course they do! They also pick up ideas from WoW, Gurps, Runequest, and every other source they come into contact with. It's completely natural and unavoidable. What I worry about is fluff. If you have a good storyline I suggest you don't post it here. What you can do is post it somewhere else such as google documents and link the site here. If it's posted offsite then the ToU don't apply. |
| #69RUMPLESTIXSep 10, 2009 5:01:21 | About this:
How does it differ from limiting damages to $0? There are no damages. Damages are the recoup from mischarges by the company or a limit to recouping charges from a lawyer hired. WotC does not mischarge you (in general) because you make the "payment" your self when you decide what to post. With mischarges services will be cut-off if they are not paid but WotC will not cut off your services for not posting. Again, the damages refer to charges applied for the service that one can't avoid such as the question of an inappropriately applied tax. You always control what you post. How does it differ from deducting an unspecified sum from your checking account? Money has real monetary value. Duh. If someone can take that over your objections it is decidedly different than you consenting to each individual piece of information that you personally choose or choose to not post. Each use is an individual sale where youi determine what you are willing to pay. It isnot WotC's responsibility that you knowingly and willingly choose to pay more for something than you think it is worth or later change your mind and want t back out. If someone willingly overpays you for a clunker they no is a clunker andthen later change their mind it is not your problem. |
| #70wrecanSep 10, 2009 6:51:27 | First of all, cases from New York aren't relevant. They're more relevant than any of the cases you've cited -- at least my case actually refers to nonexclusive perpetual irrevocable IP licenses. You haven't cited a single case involving intellectual propety law, much less the topic at hand. (It also indicates that New Yorkers, at a minimum, should be very leery at relying on your arguments.) It's understandable that you'd think that it was a federal law issue I never said it's a federal law issue. I just cited one case stating explicitly that perpetual irrevocable IP licenses are not unconscionable. So far, it's the only case introduced on the topic. We're talking about unconscionability in clickthrough licenses. You haven't cited any cases in which the clickthrough property of the contract is pertinent to an unconscionability analysis. McKee expressly held that contracts based on even less than a click-through (assent to the agreement was inferred simply by using the product -- phone service) are enforceable under Washington law. Their ruling on unconscionability had nothing to do with the means by which the contract was entered. So, you need to show a citation in which unconscionability has been found in part because of a contract's clickthrough provision, and you need to show a case where perpetual irrevocable licenses would br considered unconscionable under any circumstances. Is it be an honest reading of the case to say that the plaintiff probably had her furniture repossessed? That's not pertinent to our discussion. There was no holding that the contract was unsconscionable. Only that the judge was wrong for rejecting the argument out of hand. Williams is utterly inapposite. All it stands for is the idea that the doctrine of unconscionability exists, which nobody disputes. The issue at hand is whether it would apply to a perpetual irrevocable license granted in a clickthrough contract. And on those issues you have provided no support for your position that the doctrine would apply. Most corporations, for tactical reasons, don't put this sort of EULA provision to the test outside of arbitration. I don't believe you. Do you have any evidence that this is true? I think it equally likely that it doesn't get tested because any potential disgruntled licensor was advised by competent counsel that his argument wouldn't fly, even in Washington. You keep telling me that there's absolutely no chance that the copyright licensing clause is unconscionable. But you keep avoiding these questions. How does the result differ from limiting damages to $0 I avoid the question because it's not my burden to show conscionability. You're the one who claims it's unconscionable, so you're the one who has the burden of coming forward with evidence that it is unconscionable. You have not done so. Instead you try to infer unconscionability by a lack of evidence. In a court of law (according to McKee), it is also the person claiming unconscionability who has the burden of showing the doctrine's applicability. In short, I don't have to show anything. This is your case to make. So, do you have any evidence that clickthrough contracts are relevant to an analysis of unconscionability and non-exclusive perpetual irrevocable IP licenses have ever been declared unconscionable by any American court? Is so, please present this evidence.
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| #71wrecanSep 10, 2009 7:35:07 | (Apologies for the formatting issues.) For the record, let's review what the Washington Court said in McKee about why certain provisions might be unenforceable due to unconscionability:
So let's review. The McKee court indicated that clickthrough contracts were enforceable and would not be treated as harshly as the AT&T contract. The McKee court found provisions of the AT&T contract unconscionable because it eviscerated the Consumer Protection Act (an Act not at issue in a case involving a non-exclusive irrevocable perpetual IP license), because it had a confidentiality provision (not present here), because it violated a Washington statute on attorney's fees (not at issue here), and because it involved class actions (not at issue here). Also, here's some cases in which "clickwrap" (what you called click-through) nonexclusive perpetual irrevocable IP licenses were found enforceable: Finally, I close with the words of Mark A. Lemley, Professor of Law in Stanford University Law School and one of the pre-eminent intellectual property professors in the country: |
| #72lokiareSep 10, 2009 12:53:29 |
Ok, I'll stop quoting entire posts (I just like being able to quote nested quotes) I did not say it forbids the contractual transfer of copyrights. I said it forbids perpetual transfers of rights to a copyright. I'm not a lawyer, so I am probably not using the proper terminology. Basically what I mean is that when you tell someone they can use your stuff for 30 days, they can only use it for 30 days. If you clickthrough a EULA and they claim a perpetual license for anything you post, that is not legal. At best it lasts until you opt out of the service and notifiy them that you are longer using their services and want the rights to your materials back. |
| #73wrecanSep 10, 2009 13:39:54 | If you clickthrough a EULA and they claim a perpetual license for anything you post, that is not legal. For the second time, what international law says that? Name the treaty or convention, because I have never seen any international law that bars perpetual licenses. |
| #74Dane_McArdySep 10, 2009 14:00:10 | If you clickthrough a EULA and they claim a perpetual license for anything you post, that is not legal. You are wasting your time, you will never get an answer. |
| #75Seeker95Sep 10, 2009 14:53:16 | You are wasting your time, you will never get an answer. If you guys would stop quoting him I would never have to see anything! |
| #76Dane_McArdySep 10, 2009 16:00:32 | You are wasting your time, you will never get an answer. OMG! The same for me! I am so friending you! |
| #77ophiteSep 10, 2009 17:09:18 | Wrecan: You're either being dishonest or incompetent, and I can't tell which. There are several points which you've either missed or ignored, and you've repeatedly truncated quotes to allow you to respond without addressing the main issue. Consequently, this will be my last response. (1) You keep bringing up 'the IP issue.' There is no IP issue whatsoever. Federal IP law deals exclusively with how intellectual property rights are created and whom they vest in. IP transfer and IP licensing are a state contractual issue. You are attempting to bury me in irrelevant cites from non-binding authority about an entirely commonplace activity: the perpetual license of intellectual property. This is frequently done; anyone claiming that it's per se unconscionable is either crazy or really, really wants to break their contract. It's handing away a perpetual license (which devalues the IP), on a forum that explicitly solicits IP submissions, using a clickwrap license that I object to, on both legal and ethical grounds. (2) You started out by treating unconscionability as though it were a statutory issue. It is not a statutory issue: it's a common-law issue, and an equitable doctrine. The public policy reason may derive from a statute, but it is not a statutory issue. You have then proceeded to alternately ignore and mischaracterize procedural unconscionability. Except in one circuit (one that Washington isn't in), EULAs are generally enforceable. However, because the procedural unconscionability involved, the burden of proving substantive unconscionability is substantially lower. I am not saying, nor have I ever said, that EULAs are unenforceable, just that unilateral imposition of terms imposes a higher burden on the drafter (in terms of unconscionability) than a regular old contract. You then moved on to telling me that unconscionability was to prevent loss of procedural rights. When that failed, you grossly mischaracterized a first-year contracts case. The case was remanded to the trial court because unconscionability is a factual issue, not because the case's eventual outcome was in doubt. The subsequent history shows that no such trial happened. Do you think it's more reasonable to conclude that they settled out of court to prevent a final disposition and avoid issue preclusion, or that the plaintiff appealed and then dropped the case on remand? You then made the patently absurd claim that although arbitration clauses were void for unconscionability, you could evade the problem by simply limiting damages to $0.00. In other words, you can just prevent the claim from being decided (except for injunctive relief) rather than mandating how. Do you really mean that? And do you understand why, given that you apparently didn't know, when this conversation began the relevance of procedural unconscionability or that it's a not a statotory issue, I had to drag you all the way back to first principles? (3) You're a large company. You have (let's say) 30,000 identical adhesion contracts. You "don't believe me" that companies are unwilling to subject their adhesion contracts to final judgment. Let me put it this way: you get sued for a nominal sum by a single plaintiff. If, after losing your arbitration clause, you essentially waive your EULA and settle, you pay that nominal sum. If you go to court and receive a final judgment, you do two things. You (a) potentially lose more contract terms to unconscionability in courts with binding authority, and, worse, you (b) subject each one of those contracts to issue preclusion, making you incredibly vulnerable to class action. You pay that nominal sum to the plaintiff, and subject yourself to nearly guaranteed damages equal to (roughly) the number of contracts times the original plaintiff's damages. Do you now understand why there are very few appellate cases involving EULAs? (4) You keep clipping quotes to grossly mischaracterize what I said. This is incredibly dishonest. I am not trying to say, nor have I ever said, that the EULA is void for unconscionability. There is no case law on this issue, which is something I've repeated over and over. I'm saying it's on shaky legal ground, because it limits remedies and devalues property in a wholly unexpected way. |
| #78RUMPLESTIXSep 10, 2009 17:17:06 | Sheesh, more (attempted) word dancing. I want a specific answer to something asked once already. If it is unconscionable because it limits damages (a point made earlier) , what specifically are the damages being limited? For there to be damages (which lead to it being unconscionable in one of your earlier posts...) there must be wrongdoing by WotC because that is a part of the legal definition of "damages". What is the wrongdoing by WotC which results in the damages that are being limited? |
| #79wrecanSep 10, 2009 17:32:29 | Consequently, this will be my last response. Ah, the "declaring victory and then leaving" gambit. Well played, sir. (1) You keep bringing up 'the IP issue.' No, I don't. I simply describe the property being licensed appropriately as intellectual property. I never said there was an "IP issue", though I speculated as an aside that there may be federal IP preemption issues. When you pointed out this was a matter of State contractual law and not pre-empted I did not take issue with that rebuttal. It's handing away a perpetual license (which devalues the IP), on a forum that explicitly solicits IP submissions, using a clickwrap license that I object to, on both legal and ethical grounds. And yet you have provided no citation demonstrating that there are any legal grounds for you to stand upon. (Any ethics-based arguments are iirelevant here.) And I have cited a legal scholar and several cases stating that you have no legal grounds at all. (2) You started out by treating unconscionability as though it were a statutory issue. No, I didn't. I simply pointed out that the basis of some of the McKee court's unconscionability rulings was Washington statutory law, which it was. You mischaracterized my position and have been flogging that straw man ever since. You have then proceeded to alternately ignore and mischaracterize procedural unconscionability. No, I did not. You asked me how to distinguish McKee's holding from the EULA license provision, and I did so on the thoroughly rational basis that McKee dealt with procedural unsoncsionability, which it does. You mischaracterized what I wrote as if I were making a global point about unconscionability (I was not) and, despite my explaining what I wrote, you continued to flog the straw man. You then moved on to telling me that unconscionability was to prevent loss of procedural rights. No, I did not. I simply (and accurately) described the rationale of the McKee court. I never said that unconscionability in general was procedural in nature. The case was remanded to the trial court because unconscionability is a factual issue, not because the case's eventual outcome was in doubt. I never said that either. I accurately described Williams and even linked to the text fo the decision. It was you who inaccurately claimed that Williams held the contract in question to be unconscionable and when I pointed out it had not, you again invented positions for me that I never took. Do you think it's more reasonable to conclude that they settled out of court to prevent a final disposition and avoid issue preclusion, or that the plaintiff appealed and then dropped the case on remand? I think that's a false dichotomy. I think it more likely that both the plaintiff and defendant settled out of court to avoid further costs of litigation. Anything else you might conclude form their settlement would be speculation and would have no bearing in a court of law or a rational argument. Not to mention that it's fairly off-top from the issue of the conscionability of the EULA licensing provision we're supposedly discussing. You then made the patently absurd claim that although arbitration clauses were void for unconscionability, you could evade the problem by simply limiting damages to $0.00. No, I never said that either. I actually have no idea where you got this notion from. You may be confuing me with something Rumplestix said (though he also did not claim you could limit damages to $0.00). (4) You keep clipping quotes to grossly mischaracterize what I said. This is incredibly dishonest. I am not trying to say, nor have I ever said, that the EULA is void for unconscionability. That's not what I said you said. You said that you believe the provision in the EULA granting an irrevocable perpetual non-exclusive licence over a contributor's written work submitted to this forum could be unconscionable. So I cited a Stanford Law Professor and a slew of cases that hold that perpetual clickwrap license agreements are not only conscionable, but fully enforceable. In short, you're wrong. There is no case law on this issue, which is something I've repeated over and over. You are wrong, no matter how often you repeat the wrong statement. I found several cases and a law review article citing several more unreported cases on this issue. (I did nto know about these cases when the conversation started, so I suppose I should thank you for motivating me to educate myself.) I'm saying it's on shaky legal ground, because it limits remedies and devalues property in a wholly unexpected way. And you have no evidence to suggest that's so, and I've provided lots of evidence to show quite the opposite. I note you have not addressed any of the clickwrap cases I cited, or the Law Review article. That's remarkable. Do you really think anybody following this thread would fail to notice this? Do you think unfounded accusations that I've quoted you out of context or attributing to me arguments I never took are going to be unnoticed? The entire transcript of this discussion is preserved for all to see. So have fun with whatever you decide to do going forward. I hope it doesn't involve telling people on other parts of the internet that clickwrap contractual provisions granting perptual irrevocable non-exclusive licenses are on "shaky ground." That would be irresponsible and wrong. |
| #80wrecanSep 10, 2009 18:41:33 | For the record, here's how the conversation went:
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| #81Dane_McArdySep 10, 2009 19:09:27 | Just ask yourself this. Do you really think WoTC needs to secretly steal posters ideas? First, they have products planned at least a year in advance, and ready to go. So about anything you come up with, they probably came up with, already. And 90% of the ideas posted here, are probably useless for the game in general. Or just flat out stink. |
| #82lokiareSep 10, 2009 19:23:47 | Here are some quotes I'm digging up from an international copyright website: www.wipo.int/export/sites/www/copyright/... In some countries, an assignment of copyright is not legally possible, and only licensing is allowed. Licensing means that the owner of the copyright remains the owner but authorizes someone else to carry out certain acts covered by his economic rights, generally for a specific period of time and for a specific purpose. For example, the author of a novel may grant a license to a publisher to make and distribute copies of his work, and, at the same time, he may grant a license to a film producer to make a film based on the novel. Licenses may be exclusive, which means that the owner of copyright agrees not to authorize any other person to carry out the licensed acts, or non-exclusive, which means that the copyright owner may authorize others to carry out the same acts. A license, unlike an assignment, does not generally convey the right to authorize others to carry out acts covered by economic rights. In other words you still have the option of telling WotC they can't use your stuff even if they have a license to use it. This may apply: The second category of limitations on the rights of authors and other owners of copyright concerns particular acts of exploitation, normally requiring the authorization of the owner of rights, which may, under circumstances specified in the law, be done without authorization. There are two basic types of limitations in this category: (1) “free uses,” which are acts of exploitation of works which may be carried out without authorization and without an obligation to compensate the owner of rights for the use, and (2) “non-voluntary licenses”, under which the acts of exploitation may be carried out without authorization, but with the obligation to compensate the owner of rights. This has a bearing:
The next is taken from www.wipo.int/export/sites/www/copyright/... This talks about exclusive rights: The WCT and WPPT provide that authors, performers and producers of phonograms must be granted exclusive rights to authorize the making available of their works, performances fixed on phonograms and phonograms, respectively, by wire or wireless means, in such a way that members of the public may access those works, performances and phonograms from a place and at a time individually chosen by them (that is, interactive, on-demand services). In other words the authors themselves have to be given exclusive rights to authorize the making available of their works. From this site on the berne convention www.wipo.int/treaties/en/ip/berne/summar... : The Convention also provides for “moral rights,” that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the author’s honor or reputation. Hopefully I haven't grossly misinterpreted the international laws as some have proposed. |
| #83ophiteSep 10, 2009 19:34:56 | Wrecan: Okay, so, I lied. It wasn't my last response. It would've been, but I think you just let me know what the problem was. Additionally, I think we can both agree that this Interweb Lawyer kick-fight isn't going anywhere useful. And yet you have provided no citation demonstrating that there are any legal grounds for you to stand upon. (Any ethics-based arguments are iirelevant here.) And I have cited a legal scholar and several cases stating that you have no legal grounds at all. Really? Policy-based arguments have no place in determining the application of an equitable doctrine? When the standard is undue harshness? No, I didn't. I simply pointed out that the basis of some of the McKee court's unconscionability rulings was Washington statutory law, which it was. I may just have misunderstood your position, though I think that misreading of your first post was understandable. No, I did not. You asked me how to distinguish McKee's holding from the EULA license provision, and I did so on the thoroughly rational basis that McKee dealt with procedural unsoncsionability, which it does. Okay. Here's your problem right here. You're not crazy or lying. You're just misunderstanding what procedural unconscionability is, and how it applies to EULAs. I'm not asking you to do a lot of research, here. Just google it. I'm correct. "Procedural unconscionability" isn't unfair or unduly harsh limitation of procedural rights, it's unconscionability in the procedure of forming the contract. A contract is procedurally unconscionable when one party cannot negotiate its terms, or the terms of the contract are "hidden." Procedural unconscionability alone isn't sufficient to prevent a contract term from being enforced. EULAs are not invariably procedurally unconscionable, and the law nationwide is by no means uniform, but the West Coast trend (see Gatton v. T-Mobile, for instance) has been toward finding procedural unconscionability in unilaterally imposed contracts like EULAs. You've been hung up on this issue for several posts now, and you've kept telling me that "EULAs are enforceable." I thought you were mischaracterizing the law because I didn't understand what you were saying. This is why I thought the cases you were citing to were irrelevant. Unfortunately, the are still irrelevant. You're citing them to me because you think the type of contract doesn't matter. It does. Unilaterally imposed contracts, or contracts with hidden terms, put a heavier weight on the "unconscionable" side of the balance than negotiated contracts. I don't have access to the law review article that you're citing (or, rather, I'd have to pay for it, which is part of why I didn't respond to it). Control-F search for unconscionability. I suspect you'll find what I'm telling you verified. To contrast, "substantive unconscionability" is unconscionability in the substance of the contract. You're actually wrong about McKee's grounds. See the section where they discuss procedural unconscionability and fail to reach a decision because they've already made their decision on substantive grounds. Incidentally, giving McKee as an introduction to unconscionability was a mistake. No, I never said that either. I actually have no idea where you got this notion from. Earlier, you corrected yourself by saying that it would be conscionable to limit damages to the cost of services. In this EULA's case, that limitation would be $0.00. What did you actually say, if not that? That's not what I said you said. You said that you believe the provision in the EULA granting an irrevocable perpetual non-exclusive licence over a contributor's written work submitted to this forum could be unconscionable. So I cited a Stanford Law Professor and a slew of cases that hold that perpetual clickwrap license agreements are not only conscionable, but fully enforceable. I can't untangle these sentences, but this reply actually gives me hope of untangling this argument into something I can understand. Here's the Cliff's Notes version of what I'm saying: (1) EULAs may be valid and enforceable. They are not, however, per se valid and enforceable. (2) Permanent IP licenses in exchange for compensation are unremarkable and common. Permanent IP licenses are also generally done through negotiated contracts. A permanent IP license done through a negotiated contract would (I suspect) seldom be held unconscionable unless another defense, like economic duress or futility, already applied. (3) Unconscionability is divided into two parts: procedural and substantive. This is a balancing test. An unfavorable contract made under oppressive circumstances may be unconscionable; a negotiated contract made under normal circumstances is almost never so, unless another defense already applies. (4) Procedural unconscionability occurs when the terms of the contract are hidden, surprising (in most jurisdictions), or "forced" on the servient party. "Market choice" is not an infallable defense to procedural unconscionability. Because the EULA is imposed on the user without negotiation and kept behind a hyperlink, it looks procedurally unconscionable under this standard. Addtionally, there has been public outcry about previous EULA provisions of this type in applications used to create or distribute intellectual property. This indicates to me that this sort of intellectual property tar-baby would be surprising to the average user. (5) Substantive unconscionability occurs when the actual terms of the contract are unduly harsh to the servient party. A permanent licensing agreement not only entirely deprives the user of a cause of action (copyright infringement), it deprives the user of valuable property (the ability to exclusively license copyrighted material). It's comparable in both scope and result to equivalent deprivations of process, and is prospectively incredibly detrimental to the user's interests, and detrimental in a way that isn't anticipated by the servient party at the time the contract is made. (6) Therefore, this whole bit doesn't really pass the smell test to me. This is especially the case because WotC's boards solicit new intellectual property of the very type that they publish. You seem to think that this is insane. However, I'm not going to brief this issue and can't respond to your cases, as I'd have to spend someone else's Westlaw money to do it. There is very little chance that I'd be able to justify "I got in a fight about Dungeons and Dragons" as a good reason for spending. Can you concede that, at the very least, there's reason enough to avoid 'frivolous lawsuit' territory (which is what you accused me of earlier) to think it might be held unconscionable if it ever got to court? |
| #84ogrehooperSep 10, 2009 21:31:51 | Wrecan, beware, the internet isn't made for well-stated, simple, thoughftul, and full of correctness posts like yours. Wrecan: 1 O-notevensurehowhisnameisspelledanddontcaretolook: 0 |
| #85wrecanSep 10, 2009 22:31:01 | And yet you have provided no citation demonstrating that there are any legal grounds for you to stand upon. (Any ethics-based arguments are iirelevant here.) And I have cited a legal scholar and several cases stating that you have no legal grounds at all. Wait a minute. So in that whole quoted section, you decided not to respond to my request for citations or even to respond to the onces I provided, and decided to take issue with the parenthetical statement? Policy-based arguments are irrelevant when we have legal precedent to deal with. It's particularly irrelevant when you are supposedly defending your statement that the actual law is trending in favor of invalidating these provisions. But you haven't shown anything indicating such a trend. If all you have are policy-based arguments, you don't have a trend at all. You just have untested theories (that have been rejected by every court to consider th validity of clickwrap licenses). you've kept telling me that "EULAs are enforceable." I thought you were mischaracterizing the law because I didn't understand what you were saying. This is why I thought the cases you were citing to were irrelevant. Unfortunately, the are still irrelevant. You're citing them to me because you think the type of contract doesn't matter. It does. Unilaterally imposed contracts, or contracts with hidden terms, put a heavier weight on the "unconscionable" side of the balance than negotiated contracts.[ The cases I cited involve clickwrap licenses, which means they are unilterally imposed and they involve irrevocable licenses. I don't know where you get the idea that such licenses are invalid. I took your word for it because I had never looked into it before. But having done the research, you're wrong. Earlier, you corrected yourself by saying that it would be conscionable to limit damages to the cost of services. No, I did not. I specifically said I have no idea whether it would be conscionable or not and would need cases. You seem to think that this is insane. However, I'm not going to brief this issue And yet you seemed to have no problem demanding that we produce to you cases that hold that clickwrap licenses are valid (and when I do you decide you can't be bothered to find those cases -- it's not like a cited any unreported cases by the way. Law libraries still carry the hard books -- and if you're a member of a State bar, you should have access to the bar association's law library.) Can you concede that, at the very least, there's reason enough to avoid 'frivolous lawsuit' territory (which is what you accused me of earlier) to think it might be held unconscionable if it ever got to court? No. I can't concede that because the cases I've read seem to make this a no-brainer. At anyrate, why should I concede anything? It's your burden to prove your case, and yet it appears I'm the only one citing cases on point. At this point it appears you are unable and/or unwilling to do that. To recap... you started this row by claiming the the legal trend was against enforcement of clickwrap licenses. You cited a case (McKee) you now admit was a mistake. You don't have a better case to cite. You now only have "policy-based" arguments. As you should know, policy-based arguments are useful only in the absence of law. We haven't established an absence of law; to the contrary, there's law out there, which I've cited. As for the use of the term "procedural unconscionability", I wasn't trying to use the technical legal term. If you'd read my posts you'd see I was making a distinction between procedural and substantive rights, not unconscionability. I was unaware you'd be claiming to have actual legal training, or I'd have been more careful in my use of terms. I apologize for that bit of inartfulness, which has absolutely no bearing on whether clickwrap perpetual licenses might be found unconscionable. |
| #86ophiteSep 10, 2009 22:46:52 | To recap... you started this row by claiming the the legal trend was against enforcement of clickwrap licenses. You cited a case (McKee) you now admit was a mistake. You don't have a better case to cite. You now only have "policy-based" arguments. As you should know, policy-based arguments are useful only in the absence of law. We haven't established an absence of law; to the contrary, there's law out there, which I've cited. If you want a really precise definition of what I think: there's a trend in the West Coast, which is the only area I'm familiar with and the only area that's relevant, toward greater review of adhesion contracts for unconscionable terms. I gave McKee -- which was a mistake because it doesn't review the doctrine of unconscionability in its text -- because it's the most recent case I'm aware of that substantially expands review of the terms adhesion contracts. On balance, I still would have cited it for the proposition that the trend is away from a "hands-off" approach, but I wouldn't've given it to explain the entire concept from scratch. As for the use of the term "procedural unconscionability", I wasn't trying to use the technical legal term. Oh. I see. You want me to brief the issue, but you only want to use terms of art when it suits you, and you can't recognize them when they occur in the body of a case. If you'd read my posts you'd see I was making a distinction between procedural and substantive rights, not unconscionability. You were making that distinction incorrectly. Your good-faith mistake about the holding in McKee (re: the substantive/procedural issue) ndicates that you didn't know what you were talking about to begin with. I was unaware you'd be claiming to have actual legal training, or I'd have been more careful in my use of terms. ((removed))The only reason you would even suspect that I could check your legal citations is if I had access to Lexis or Westlaw. And why in God's name would a layperson have that? Insofar as I can check your cites--by which I mean "reading the citation and determining which court they come from"--there is no binding authority in Washington (the state law that applies). As far as I can tell, the sum total of your argument is that "clickwrap licenses are conscionable; perpetual IP licenses are conscionable; therefore, a clickwrap perpetual IP license is conscionable." Which is as sound an argument as "ham sandwiches are tasty; Mars bars are tasty; therefore a ham and Mars bar sandwich is tasty." You are performing for an audience, not having an argument. Which is why you've persistently dissected my posts to remove the parts you were technically incompetent to deal with. |
| #87WebsterSep 10, 2009 22:48:22 | I suggest the hostility be toned down. Thanks. |
| #88wrecanSep 11, 2009 8:25:19 | Now onto Lokiare's argument: In some countries, an assignment of copyright is not legally possible, and only licensing is allowed. Okay, first of all, we were discussing EULA, which only involves a non-exclusive perpetual clickwrap license. I guess we need another recap:
Your first quote indicates that you can license your IP to other people. So that doesn't help. To the extent you think a license allows the licensor (you) to dictate to the licensee (Wizards) the scope of the license, you are wrong. The quote you provided doesn't say that -- it only states that the scope of the license is defined by the terms of the license agreement (the EULA). Your fourth quote, however, is on point. Rather than quote a summary of the Berne Convention, let's cite the English translation of the pertinent clause (Article 6bis.1.a) in the actual treaty: Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. And in this respect, you are correct that even against a licensee, under international law, an author would maintain certain rights. But you need to understand that this right is very limited. You cna only complain about an alteration to your work that would be "prejudicial to [your] honor or reputation." That would require a few things. First, the material would have to be attributable to you. If Wizard were to use an idea you used and not attirbute it to you and not include any indication that you were the author, your reputation and honor would be unstained. Second, the action has to be "prejudicial". Generally, this means you have to be able to show that you were actually prejudiced. Merely being insulted by the action is not enough. You'd have to show that you have been actually affected by third parties, usually in the form of lost business, or a decrease in the value of your works as a direct consequence of the complained acts. The use of the phrase "other derogatory action" also indicates an element of intent -- in other words, the person using your work has to intend to be derogatory to you. |
| #89ORC_WyvernSep 11, 2009 14:00:21 | I've removed or altered content from this thread because baiting is a violation of the Code of Conduct. Please review the Code of Conduct here.
Please keep your posts polite, respectful, and on-topic, and refrain from making personal attacks. |
| #90Seeker95Sep 11, 2009 15:18:11 | Okay, let's try it this way then: Wrecan's argument is solid, well-laid-out, consistent, and convincing. Wrecan, I believe you can (and should) rest your case. |
| #91wrecanSep 11, 2009 16:06:16 | I agree with Seeker and will not respond further. (<---I think that's word-for-word what I originally wrote) |
| #92GMforPowergamersSep 12, 2009 0:48:29 | ok all you legal guys...my friend Kurt wants to yell at Bruce cordell...why, becuse he reads his mind.
Back in 1e he had illithid and beholders very simalar to ones bruce wrote about in 2e. There is an entire adventure that (more or less) I played through back in early 3.0 that was relase in late 3.5. The best though was Kurt had his first character in my game be a modified drow. He was elbino, and weilded a large chain. he had odd percings and tatoos. His name was Shadar Doom. About a year later when he was runing a game he expanded on it. Shadar Doom had started his own tribe that lived in the plane of shadow. They all were elbino (hurt by sunlight) and had tattoos and peircings. The were a pretty bad goth rip off, and we were all sure was basicly an excuse for him to draw scantaly clad elvin women that looked like sexy goths... all of this in 2e around 1996-1997... He called them the Shadar Elves WHen he saw the 3e fiend folio he almost ripped it apart...there the shadar ki were his idea... so he changed them. He made them human and worship wee jas... I fell over laughing when I saw the preview for them in 4e...it was too funny...
now he never published, or posted them online. He never ran the game except for a few of the guys we know...Bruce COrdel must be reading his mind...
so what does everyone think...
(((((Just so you know just typeing this has me giggling like a school girl remembering the day I showed him the 'new shardar ki')))) |
| #93lokiareSep 12, 2009 3:41:57 | Wrecan: Since I publish my work and if WotC decides to publish my works also, that leaves me monetarily less than I would have been if I had been the sole publisher. Also if I then subsequently publish the material. People who view the WotC material first then view my material will think I stole it from them. Therefore it will affect my reputation and therefore defame me, or whatever the word is that they use. So basically I do fulfill the requirements. Now could I actually win a case against WotC? probably not. They pay their lawyers well and I would have to settle for some drunk or probono lawyer that probably couldn't fight his way out of a legal paper bag. Would it be worth it to see someone that actually works for WotC yes. |
| #94Dane_McArdySep 12, 2009 7:08:17 |
This kind of stuff happens, ALL the time. Exspecially amongst people that are into the same thing. If you look Shadar up, you get this : A meshulach (Hebrew: משולח) or SHaDaR (Hebrew: שד"ר, acronym for SHelichei DeRabonan - an emissary entitled by the rabbis; according to others, the acronym is SHelichah DeRachmanah - an emissary from God) is a rabbinical emissary sent to collect charity funds (chalukah). In the original meaning it was for the resque of the Yishuv ha-Yashan of Eretz Yisrael, the funds were distributed by the Kollelim in form of chalukah. And isn't that what the Shadar-ki are in a way, emissary to their god? They are completely loyal to the Raven Queen. I once came up with a wizard in Everquest named Stavenham. Who was lucky, he could have been like his brother the sailor, Saltedham. Or his cousin the priest, Curedham.That was his ingame response when people said they liked his name. I thought name was something I came up with. Nope. Turns out it's the name of a village, in a book, mentioned only ONCE in passing. The thing is, everything goes into your brain, and how it comes back out is very interesting. It's also very Jung in idea, the evolution of thought. The idea the one person doesn't have an idea, but that it grows from a collective. That a new though doesn't occure to just one person, but to several people in different levels of clarity. |
| #95wrecanSep 12, 2009 7:35:09 | Since I publish my work and if WotC decides to publish my works also, that leaves me monetarily less than I would have been if I had been the sole publisher. Except the Berne Treaty doesn't give you a remedy for stolen work. It only gives you a remedy for work that has been mutilated to such an extent that it is derogatory to your honor. A lost business opportunity is not derogatory to one's honor, even if it is money out of your pocket. I'm sorry, but the international law you pointed doesn't allow you to avoid the impact of the EULA license. Therefore it will affect my reputation and therefore defame me, or whatever the word is that they use. So basically I do fulfill the requirements. That is not defamation. Even a pro bono or a drunk lawyer would tell you that you have no case. You would lose not because Wizards has better lawyers but because the law favors them. I'm sorry, lokiare. Even if Wizards had taken an idea you published on the forums (and having seen your claim from another thread, I don't believe you have a very good case that they did), they have not bee derogatory to you, which is required under Berne. |
| #96Dane_McArdySep 12, 2009 7:52:19 | Since I publish my work and if WotC decides to publish my works also, that leaves me monetarily less than I would have been if I had been the sole publisher. You also need to show that you had some standing that was defamed. In this case, I think it's clear. |
| #97lokiareSep 12, 2009 13:38:35 | Since I publish my work and if WotC decides to publish my works also, that leaves me monetarily less than I would have been if I had been the sole publisher. My standing would be that I publish my work and are therefore an author. |
| #98RUMPLESTIXSep 12, 2009 14:21:27 |
My standing would be that I publish my work and are therefore an author. But, you are under no obligation to have wizards publish your works for you and there is no defamation. You can go to other sites that do not have this disclaimer. I do not think that D&D Wiki, or RPG Net or Mythweavers (which have wikis also) have such an agreement just to name a few. I am also willing to bet that you can get shareware to make your own bulletin board. When you make the agreement you agree to give up some stuff for the ability to use wizards forum and to access their fanbase by using it. However, this contract does not prevent you from not publishing something on wizards and publishing something somewhere else instead. You make this same agreement every time that you post something but the user agreement allows you to only give one official response and have it count for each time. But, as a said, you are not bound to publish here anything that you want to publish. You are bound by the agreement made for publishing something once you actually have wizards publish it for you. So author or not, you choose to give up something when you post here despite the fact that there are many available alternatives where you can have it put out for everyone to see and remain your IP in every aspect. Only, people prefer here to many others because they like what they get in return for that tradeoff. It is that simple. edit note: There is some kind of problem with the nesting. The following: "Therefore it will affect my reputation and therefore defame me, or whatever the word is that they use. So basically I do fulfill the requirements.
That is not defamation. Even a pro bono or a drunk lawyer would tell you that you have no case. You would lose not because Wizards has better lawyers but because the law favors them. I'm sorry, lokiare. Even if Wizards had taken an idea you published on the forums (and having seen your claim from another thread, I don't believe you have a very good case that they did), they have not bee derogatory to you, which is required under Berne." should have a quote ending after requirements. The next portion is a continuation of wrecan's post that is nested with two quips from Lokiare. The forum doesn't seem to like it. |