4 ms·

They are also (arguably) selling software written/designed/intended for the express purpose of bypassing copyright protections, which as I understand is in and

They are also (arguably) selling software written/designed/intended for the express purpose of bypassing copyright protections, which as I understand is in and of itself a no-no under the DMCA regardless of underlying ownership. I ANAL of course. edit: per the sibling comment the crack might not be included, so this might not apply.

gamblor956 3y ago
a no-no under the DMCA regardless of underlying ownership The "regardless" part is wrong. It is permissible for the owner of the software to include software for the express purpose of bypassing the protections they themselves placed on their software. Why would you think that the software owner isn't allowed to do that?
- NoMoreNicksLeft 3y ago
  It would be permissible, if the "software for the express purpose of bypassing the protections they themselves placed on their software" was their own software. It's not permissible for them to make available other people's "software for the express purpose of bypassing the protections they themselves placed on their software" without the express permission of those other people. Neither statute nor case law sets a lower limit on the size of software that is protected by copyright... but if there were a lower limit, then it is clearly down towards the hundreds (or even dozens) of bytes. The crack certainly doesn't sit underneath that lower limit. It'd be like purloining just one source code file, including it in your commercial software and relying on the defense "hey, it was only a few hundred lines long".
  - gamblor956 3y ago
    without the express permission of those other people. That is false. They simply have to use the other software, i.e., the crack, within the terms of its license. In this case, the crack was distributed widely with a permissive use license. My hazy memories of that era specifically mention giving them credit and nothing else. There was definitely no commercial use restriction.
  - anakaine 3y ago
    There is the matter of enforcement, however. If something is completely unenforceable, such as in this case where the owner is using a pirate groups bypass, then it may as well be permissible. It's not expressly permissible, but the perceived breach is also not enforceable, so the argument becomes a moot point. Also, the patches typically had no license terms attached to their usage, or if they did it came in the format of attribution. The implications here is debatable, but we again come back to enforcement to close out the otherwise circular argument.
    - NoMoreNicksLeft 3y ago
      I'm pretty sure that the lack of license terms doesn't make it a free-for-all, instead it means that there is no possible licensed use at all. If you pick up a copy of Photoshop and can't find the license for it, you don't get to go down to the street corner and sell bootleg copies. That defense won't hold when you're in district court fighting to stay out of federal prison, anyway. And while it's true that this will never be enforced, if there are no principles here, then there can be no guilt from illegally copying these games.
      - monocasa 3y ago
        Practically (since no prosecutor is going to take this up on their own), you'd need someone dumb enough to affirmatively say "that's my circumvention tool that's illegal under the DMCA" in order to show standing for a civil case. So even if there was a no commercial use license somehow, it feels kinda like jury nullification where it's not explicitly legal, but de facto legal because of structure of the rest of the judicial system.
PrimeMcFly 3y ago
Even if the crack was included it wouldn't apply.

gamblor956 3y ago

a no-no under the DMCA regardless of underlying ownership The "regardless" part is wrong. It is permissible for the owner of the software to include software for the express purpose of bypassing the protections they themselves placed on their software. Why would you think that the software owner isn't allowed to do that?

NoMoreNicksLeft 3y ago
It would be permissible, if the "software for the express purpose of bypassing the protections they themselves placed on their software" was their own software. It's not permissible for them to make available other people's "software for the express purpose of bypassing the protections they themselves placed on their software" without the express permission of those other people. Neither statute nor case law sets a lower limit on the size of software that is protected by copyright... but if there were a lower limit, then it is clearly down towards the hundreds (or even dozens) of bytes. The crack certainly doesn't sit underneath that lower limit. It'd be like purloining just one source code file, including it in your commercial software and relying on the defense "hey, it was only a few hundred lines long".
- gamblor956 3y ago
  without the express permission of those other people. That is false. They simply have to use the other software, i.e., the crack, within the terms of its license. In this case, the crack was distributed widely with a permissive use license. My hazy memories of that era specifically mention giving them credit and nothing else. There was definitely no commercial use restriction.
- anakaine 3y ago
  There is the matter of enforcement, however. If something is completely unenforceable, such as in this case where the owner is using a pirate groups bypass, then it may as well be permissible. It's not expressly permissible, but the perceived breach is also not enforceable, so the argument becomes a moot point. Also, the patches typically had no license terms attached to their usage, or if they did it came in the format of attribution. The implications here is debatable, but we again come back to enforcement to close out the otherwise circular argument.
  - NoMoreNicksLeft 3y ago
    I'm pretty sure that the lack of license terms doesn't make it a free-for-all, instead it means that there is no possible licensed use at all. If you pick up a copy of Photoshop and can't find the license for it, you don't get to go down to the street corner and sell bootleg copies. That defense won't hold when you're in district court fighting to stay out of federal prison, anyway. And while it's true that this will never be enforced, if there are no principles here, then there can be no guilt from illegally copying these games.
    - monocasa 3y ago
      Practically (since no prosecutor is going to take this up on their own), you'd need someone dumb enough to affirmatively say "that's my circumvention tool that's illegal under the DMCA" in order to show standing for a civil case. So even if there was a no commercial use license somehow, it feels kinda like jury nullification where it's not explicitly legal, but de facto legal because of structure of the rest of the judicial system.

PrimeMcFly 3y ago

Even if the crack was included it wouldn't apply.