5 ms·

I think the ESA has a "legitimate interest in preventing piracy" ... and I also think that shouldn't prevent anyone from doing anything they like with any elec

by ploxiln 12y ago

I think the ESA has a "legitimate interest in preventing piracy" ... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally. The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them. Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers. Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore. (EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)

tptacek 12y ago
This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles. The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.
- contemptuous 12y ago
  >The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.
  - obstinate 12y ago
    EULAs are routinely enforced. Is that what you're asking? Some examples, by no means exhaustive, can be found on this page: http://en.wikipedia.org/wiki/End-user_license_agreement#Enforceability_of_EULAs_in_the_United_States http://en.wikipedia.org/wiki/End-user_license_agreement#Enfo...
- darkarmani 12y ago
  > Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?
  - tptacek 12y ago
    I do think there probably should be some kind of limited, narrowly-tailored exemption, in the spirit of "interoperability", for restoring online functionality to titles whose online components have been decommissioned.
    - Natsu 12y ago
      That would leave a large list of games lost to history and never again playable. There are quite a lot of titles that were protected by dongles, anti-emulation code, etc. in addition to those where the servers have been taken down due to the publisher making no profit off of them and the existing proposal is quite reasonably tailored to preserving works that would otherwise be lost with little impact on works that are still commercially viable. If anything, keeping old works alive helps boost the inevitable remakes, e.g. how I just bough Elite: Dangerous the other night because of what I knew about the original Elite.
      - SixSigma 12y ago
        You can still buy a BBC Micro on ebay and play the original. I still play mine, 30+ years & going strong. Although I must admit I bought an SD card adapter for it so I don't use floppies any more.
        Natsu 12y ago
        And I have an 8088 in the closet, but I wouldn't want to rely on it as the means to preserve these works until the copyright expires.
- belorn 12y ago
  > Promises agreed to in contracts that restrict your ability to modify games are enforceable. Could you provide some case law for that statement. Contract law is a complex area, and Meeting of the minds is critical aspect in order for it to be enforceable. As a consumer, I have bought my fair share of games, and not a single time was I informed about a contract. When talking about consent, EULA agreement is as far away from reality as you can make. People have signed away their eternal soul (http://boingboing.net/2010/04/16/video-game-shoppers.html http://boingboing.net/2010/04/16/video-game-shoppers.html), while a study showed that average users spend less than 8 seconds to read agreements (https://dl.acm.org/citation.cfm?doid=1753326.1753689 https://dl.acm.org/citation.cfm?doid=1753326.1753689). A similar study done earlier in 2001 looked at privacy policy documents and found that only 3% of consumer read privacy policies, and once they read it, they were less sure about what it meant than those who didn't. But the legal system is complex and not always about common sense, so lets look what the court has said in specific cases. Looking at shrinkwrap licenses, about 4 know cases has ruled against enforceability and 3 has ruled for it (http://euro.ecom.cmu.edu/program/law/08-732/Transactions/ShrinkwrapFenwick.pdf http://euro.ecom.cmu.edu/program/law/08-732/Transactions/Shr...). The primary argument seems to be about when the contract is formed, as in the store when money and product change hand, or at some later time. One camp states its in the store, and the other when the customer has performed a arbitrary number of steps (purchase, picking something up, turning a thing on, ...). The first camp is focused on the consumers ability to consent to a contract they haven't seen or understood, and the second camp is focused on current industry practices. The conclusion seems to be a distinct lack of supremer court cases to decide which camp is right.
anigbrowl 12y ago
As I said I'm basically in favor of the EFF's proposal. My beef is with their mischaracterization of the ESA's position; they're making them into a boogeyman instead of acknowledging that they have some legitimate interests here and looking for a way to bridge the gap. Even then, I don't want to blame the EFF too much, but to critique the peculiarly zero-sum American appraoch to resolving conflicts of interest, as discussed in this excellent book: http://www.amazon.com/Adversarial-Legalism-The-American-Way/dp/0674012410 http://www.amazon.com/Adversarial-Legalism-The-American-Way/...

by ploxiln 12y ago

tptacek 12y ago

This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles. The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.

contemptuous 12y ago
>The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.
- obstinate 12y ago
  EULAs are routinely enforced. Is that what you're asking? Some examples, by no means exhaustive, can be found on this page: http://en.wikipedia.org/wiki/End-user_license_agreement#Enforceability_of_EULAs_in_the_United_States http://en.wikipedia.org/wiki/End-user_license_agreement#Enfo...
darkarmani 12y ago
> Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?
- tptacek 12y ago
  I do think there probably should be some kind of limited, narrowly-tailored exemption, in the spirit of "interoperability", for restoring online functionality to titles whose online components have been decommissioned.
  - Natsu 12y ago
    That would leave a large list of games lost to history and never again playable. There are quite a lot of titles that were protected by dongles, anti-emulation code, etc. in addition to those where the servers have been taken down due to the publisher making no profit off of them and the existing proposal is quite reasonably tailored to preserving works that would otherwise be lost with little impact on works that are still commercially viable. If anything, keeping old works alive helps boost the inevitable remakes, e.g. how I just bough Elite: Dangerous the other night because of what I knew about the original Elite.
    - SixSigma 12y ago
      You can still buy a BBC Micro on ebay and play the original. I still play mine, 30+ years & going strong. Although I must admit I bought an SD card adapter for it so I don't use floppies any more.
      - Natsu 12y ago
        And I have an 8088 in the closet, but I wouldn't want to rely on it as the means to preserve these works until the copyright expires.
belorn 12y ago
> Promises agreed to in contracts that restrict your ability to modify games are enforceable. Could you provide some case law for that statement. Contract law is a complex area, and Meeting of the minds is critical aspect in order for it to be enforceable. As a consumer, I have bought my fair share of games, and not a single time was I informed about a contract. When talking about consent, EULA agreement is as far away from reality as you can make. People have signed away their eternal soul (http://boingboing.net/2010/04/16/video-game-shoppers.html http://boingboing.net/2010/04/16/video-game-shoppers.html), while a study showed that average users spend less than 8 seconds to read agreements (https://dl.acm.org/citation.cfm?doid=1753326.1753689 https://dl.acm.org/citation.cfm?doid=1753326.1753689). A similar study done earlier in 2001 looked at privacy policy documents and found that only 3% of consumer read privacy policies, and once they read it, they were less sure about what it meant than those who didn't. But the legal system is complex and not always about common sense, so lets look what the court has said in specific cases. Looking at shrinkwrap licenses, about 4 know cases has ruled against enforceability and 3 has ruled for it (http://euro.ecom.cmu.edu/program/law/08-732/Transactions/ShrinkwrapFenwick.pdf http://euro.ecom.cmu.edu/program/law/08-732/Transactions/Shr...). The primary argument seems to be about when the contract is formed, as in the store when money and product change hand, or at some later time. One camp states its in the store, and the other when the customer has performed a arbitrary number of steps (purchase, picking something up, turning a thing on, ...). The first camp is focused on the consumers ability to consent to a contract they haven't seen or understood, and the second camp is focused on current industry practices. The conclusion seems to be a distinct lack of supremer court cases to decide which camp is right.

anigbrowl 12y ago

As I said I'm basically in favor of the EFF's proposal. My beef is with their mischaracterization of the ESA's position; they're making them into a boogeyman instead of acknowledging that they have some legitimate interests here and looking for a way to bridge the gap. Even then, I don't want to blame the EFF too much, but to critique the peculiarly zero-sum American appraoch to resolving conflicts of interest, as discussed in this excellent book: http://www.amazon.com/Adversarial-Legalism-The-American-Way/dp/0674012410 http://www.amazon.com/Adversarial-Legalism-The-American-Way/...