Eagle E-Shop EULA legal in the EU? User can not re-sell modules.

[bn880]

I was about to purchase DCS A10, but read through the EULA, and the first sections seem to completely contradict what is legal in the EU:

 

-cut-

1. LIMITED USE LICENCE

 

In consideration of you agreeing to abide by the terms of this Licence, TFC hereby grants to you a non-exclusive, non-transferable, limited right and licence to install and use one copy of the Program and the Documentation solely and exclusively for your personal use on the terms of this Licence. All rights not specifically granted under this Licence are reserved by TFC and, as applicable, TFC's licensors. You may not network the Program or otherwise install it or use it on more than one computer at a time, except if expressly authorized otherwise in the Documentation.

 

2. OWNERSHIP

 

2.1 The Program is licensed, not sold, for your use. This Licence confers no title or ownership in the Program and should not be construed as a sale of any rights in the Program. This Licence shall also apply to any patches or updates you may obtain from TFC for the Program.

2.2 All title, ownership rights and intellectual property rights in and to the Program and any and all copies thereof (including but not limited to any titles, computer code, themes, objects, characters, character names, stories, narrative, locations, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, any related documentation, and add-ons incorporated into the Program now or in the future) are owned by TFC, affiliates of TFC or TFC's licensors.

-cut-

 

3. LICENCE CONDITIONS

 

3.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake to use the Program for your own personal use, and you shall not:

 

-cut-

(d) sell, rent, lease, sub-license, distribute, loan, translate, merge, adapt, vary, modify or otherwise transfer the Program, or any copies of the Program, without the express prior written consent of TFC;

So while it's nice to say that it's a limited use license in the EULA, I don't think this is legal. You can not differentiate between the store purchased and online downloaded copy of the same software is the law in the EU at least. You may not offer any warranty support to a 3rd party, but that's as far as your legal powers reach as far as I am aware.

 

Reference EU ruling:

http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-07/cp120094en.pdf

 

The second part of my question is: Why would you be so nasty as to even try to prevent people from reselling your games if they paid real money for them?

Edited December 31, 2012 by bn880
Fixing the title, to be fair.

[bn880]

Actually reading further down the EULA also has this

9. LICENCE TRANSFER

9.1 You may permanently transfer all of your rights under this Licence to the recipient, provided that the recipient agrees to the terms of this Licence and you remove the Program from your computer.

9.2 TFC may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of this Licence.

Does this mean that the "license" can be transferred to another person (not sure who the recipient is and if we are allowed to charge for the transfer)? Which is basically allowing us to re-sell the module(s)?

[Jona33]

I don't see what you mean. It looks reasonable to me. It's saying you can't sell a copy of the game while retaining your copy. You can sell the game although you have to do some fiddling around with the serial number and the account it's linked to.

Edited December 30, 2012 by Jona33

[bn880]

I don't see what you mean. It looks reasonable to me. It's saying you can't sell a copy of the game while retaining your copy. You can sell the game although you have to do some fiddling around with the serial number and the account it's linked to.

 

As long as the license can be resold/transferred somehow it's reasonable. It's hard to tell though from the EULA, would be nice to get some clarification from an ED rep.

[WarthogSmurf]

Kinda standard EULA for every game.

 

No software you actually "buy" as in buy a pshical item because you can transfer air to a person. Every game EULA has this written down. And buying for example the 5 keys on sale here and then re-sell them on your website for 5 bucks more thrying to earn a buck is a no go. But giving your old key to someone that pays you a buck or two for it and you dont want it anymore is okay.

 

So in short if you are that bother with the EULA close down your computer because your windows EULA break more rules in the EU then the EULA from ED =)

[EtherealN]

You can not differentiate between the store purchased and online downloaded copy of the same software is the law in the EU at least.

 

There is no such differentiation. What made you think there was?

Download and Hardcopy are exactly the same in all respects, except the method of delivery.

A download license will work with a hardcopy install, and a hardcopy license will work with a download install. Because they're 100% the same. ;)

 

The second part of my question is: Why would you be so nasty as to even try to prevent people from reselling your games if they paid real money for them?

 

Invite you to check anmy EULA for _almost_ any software this side of the 1970's. Did you read those EULAs? ;)

 

Does this mean that the "license" can be transferred to another person (not sure who the recipient is and if we are allowed to charge for the transfer)?

 

Yes.

Note however that it is possible that you, having performed the re-sale, is then responsible for product support to this person - legally speaking, that is. Support does not deny people assistance due to transfers, but since you were kind enough to go legal previously in the thread I might as well mention it... :)

 

Kinda standard EULA for every game.

 

No software you actually "buy" as in buy a pshical item because you can transfer air to a person. Every game EULA has this written down.

 

Here's someone that knows how things work.

 

You may say that you "bought" this or that game or "bought windows" or whatever, but trust me - purchasing a game or an operating system is a lot more expensive that what either of us two have ever done. The technical term is that we license it, and this is how it has always been. This was, for example, the reason why EU law (and my local country law before that) stipulates that software sellers must permit the user to manufacture backup copies of the software - since they're not buying a physical item, they must be able to protect their ability to use the license against the risk of hardware failures.

 

People have woken up to this so-called "issue" now in the era of digital distribution software, somehow thinking that this is a new thing that has happened along with said DD software, as evidenced in the Original Post talking about "differentiation" of store purchase and download. While of course this is how it always was. And not only with computer games. A movie on VHS, DVD, Blu-Ray is only licensed - not owned - and the same with music on Vinyl, Casette, CD or indeed iTunes and similar services.

Edited December 30, 2012 by EtherealN

[bn880]

I know you don't get IP of the software, I'm also in the industry BTW. The question is if the (remaining) license can be resold and transferred. Answer is yes, OK, sounds good. The EULA is not very clear on it and perhaps you should clarify some terms there for point 9.

 

As for support to the third party, well I could be responsible for making sure the license isn't defective sure; but not much more, it depends what the terms of the sale are. Most used things are resold "as-is", a very important little term for legal proceedings.

[bn880]

There is no such differentiation. What made you think there was?

Download and Hardcopy are exactly the same in all respects, except the method of delivery.

A download license will work with a hardcopy install, and a hardcopy license will work with a download install. Because they're 100% the same. ;)

 

 

 

Invite you to check anmy EULA for _almost_ any software this side of the 1970's. Did you read those EULAs? ;)

 

 

 

Yes.

Note however that it is possible that you, having performed the re-sale, is then responsible for product support to this person - legally speaking, that is. Support does not deny people assistance due to transfers, but since you were kind enough to go legal previously in the thread I might as well mention it... :)

 

 

 

Here's someone that knows how things work.

 

You may say that you "bought" this or that game or "bought windows" or whatever, but trust me - purchasing a game or an operating system is a lot more expensive that what either of us two have ever done. The technical term is that we license it, and this is how it has always been. This was, for example, the reason why EU law (and my local country law before that) stipulates that software sellers must permit the user to manufacture backup copies of the software - since they're not buying a physical item, they must be able to protect their ability to use the license against the risk of hardware failures.

 

People have woken up to this so-called "issue" now in the era of digital distribution software, somehow thinking that this is a new thing that has happened along with said DD software, as evidenced in the Original Post talking about "differentiation" of store purchase and download. While of course this is how it always was. And not only with computer games. A movie on VHS, DVD, Blu-Ray is only licensed - not owned - and the same with music on Vinyl, Casette, CD or indeed iTunes and similar services.

 

Oh yeah, thanks for being condescending as well. :)

[EtherealN]

I know you don't get IP of the software, I'm also in the industry BTW. The question is if the (remaining) license can be resold and transferred. Answer is yes, OK, sounds good. The EULA is not very clear on it and perhaps you should clarify some terms there for point 9.

 

The thing is that I don't understand what you feel is unclear about it;

 

3. LICENCE CONDITIONS

 

3.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake to use the Program for your own personal use, and you shall not:

 

[...]

 

(d) sell, rent, lease, sub-license, distribute, loan, translate, merge, adapt, vary, modify or otherwise transfer the Program, or any copies of the Program, without the express prior written consent of TFC;

 

[...]

 

9. LICENCE TRANSFER

9.1 You may permanently transfer all of your rights under this Licence to the recipient, provided that the recipient agrees to the terms of this Licence and you remove the Program from your computer.

 

3.1 stipulates clearly that you are not allowed to do the items listed, in part the ones under (d), except as expressly set out in [the] license - that is, for example, 9.1. So, as an example, you are not permitted to "share" the license; that is, you cannot purchase one license, and then have you and your friends all use it each on their own computer. However, should you so desire, you are expressly permitted, under 9.1 (and thus under 3.1 too), to transfer your license. Say you get fed up with it - you can give it to someone else.

 

Further, as you may have noticed, there is an additional item in 3.1 that is important: "or as permitted by any local law".

 

This means that if any specific item in the EULA cannot be enforced in a specific jurisdiction, that item is void: your rights are whatever the law states they are, EULAs cannot limit that, and this is express recognition of this fact. EULAs are never voided in their entirety by something like that, nor are the EULAs themselves "illegal". What happens is simply that a given clause cannot be enforced when contradicted by law. (Compare to how there are certain things you cannot make a contract on - for example, it is not possible to sell yourself into indentured servitude - you can make up a contract where someone pays your debts in return for lifelong unpaid service. The contract is then valid; except for the lifelong unpaid service part. :) Though most likely what a court would do in that specific case is charge the "servant" with fraud since he clearly tricked the other person into paying his debts for no return. A bit too extreme an example, but just to illustrate the matter. :) )

 

Thus, what it states is:

 

1) You may not do any of XYZ except in cases expressly permitted either by this EULA or by law. (Or if given express, written, consent by TFC.)

2) Here's what the EULA permits.

 

Obviously, local laws are not included in the EULA, that would be too large a document since there's quite a few countries with different laws and different parts may be void in different territories. (Simply keeping track of all laws on the planet that may possibly impact the EULA would require several full-time people, I expect.)

Edited December 31, 2012 by EtherealN

[EtherealN]

Oh yeah, thanks for being condescending as well. :)

 

Sorry, that was not my intention, but it was a bit weird to have it all in your two opening posts contain everything required in clear english and still have it declared ambiguous. What I mean is this:

 

As long as the license can be resold/transferred somehow it's reasonable. It's hard to tell though from the EULA

 

This after quoting the EULA telling you, explicitly, that you do have the right to transfer your rights under the license to someone else, and that local law trumps EULA. So basically, your confusion is confusing me. ;)

 

Also, please, if you feel I was condescending, please consider how your tone can be perceived when you are asking if people are "nasty". That's the point of making very clear that there is nothing new in this nor is it unique to computers games or even computer software, since your statement may be understood as you accusing Eagle Dynamics of being "nasty" in a particular and unusual way - which isn't very nice either. :)

Edited December 31, 2012 by EtherealN

[bn880]

I would expect point 9 to be clarified, and moved up to be right after the license limitations. Unless you read the entire EULA end to end you might not pick up on it, so it's not very clear, it sounds like you cant resell at all. Unless you get written permission otherwise. Why are these separate sections anyway. (and who is the recipient in point 9, and is there a limitation of sale of license? only transfer is mentioned)

 

It's hillarious because the section stating the things you can NOT do with the product is very well written out, and seems locked down. But when it comes to Ed writing what can be done with the license it's a barely legal (not even legal due to questions above) sentence.

 

But you shouldn't be confused, I made two posts. Not one. :)

Edited December 31, 2012 by bn880

[EtherealN]

They are separate sections because the first stipulates the general rules, and some latter sections (including 4) stipulates relevant exceptions. For example, you'll find that you are generally not allowed to modify the program, but with exceptions as detailed in section 4.1. (The standard non-commerical stuff etcetera.)

 

And yes, of course you should read the entire EULA. As you can see, following part 3, there is part 4 that specifies other direct exceptions. For the purpose of license transfer, it has it's very own section for high visibility, with "License Transfer" in bold, capitalized, text in the manual*.

 

The "recipient" is the recipient of the license you are transferring.

 

Seriously, you are complicating something that really is simple.

 

An issue that exists is that since the original purchase information in ED's database will remain with the original purchaser, the one who gets a resold or otherwise transferred electronic copy can have issues if he loses his serial number and needs it retrieved. (Since the transfer cannot be tracked in ED databases, said "copy" will remain listed as being with the original purchaser in ED record, so ED cannot retrieve it that way for him. Thus the matter of the reseller becoming support in order for the customer to regain access to their serial number. Though it is still easier than if the resold copy is hardcopy and the manual with the serial number is lost - in that case there truly is no-where for the user to go. A fate I am unfortunately way too used to, and one of the reasons I gave up on hardcopy games entirely - I just move house too often. :P )

 

I also know of one case where a person had purchased a used hardcopy of the program, but found the key unusable (I don't remember why). ED then issued him a new key. Note how that was a person that never had given any money to ED for the product. THAT is how "nasty" ED is. ;)

 

* Took a quick look at another EULA, for another game I have installed. I quote:

(Section 1) "XXXXXXXX hereby grants, and you hereby accept, a limited, revocable, non-transferable, non-sublicensable, non-exclusive license"

[...]

(Section 2) "You agree that you will not, under any circumstances:

[...]

"Attempt to sell, license, sublicense, rent, lease, lend, grant a security interest in or otherwise transfer any copy of the Game or your rights to the Game to any other party in any way not expressly authorized herein or let any other third person use the Game and/or

the Account."

[...]

(Section 7) "No Transfer or Sublicense. THE GAME IS LICENSED, NOT SOLD. NEITHER THE GAME NOR THE LICENSE GRANTED IN SECTION 1 MAY BE SUBLICENSED OR TRANSFERRED TO ANY OTHER PERSON OR ENTITY, AND ANY ATTEMPT TO DO SO SHALL BE NULL AND VOID."

 

Two points that I am indicating with this:

1) Having a separate section regarding transfers is standard.

2) Saying you actually can transfer, like TFC/ED's EULA does, is definitely not standard.

And btw, that specific EULA I quoted was for an EU specific version of the game in question, while the DCS EULAs are worldwide.

 

Really, my recommendation to you is to just not worry about it. Your rights are protected. As explicitly acknowledged in 3, if local law says you can resell, you can resell no matter what the EULA says. This does however not have any bearing on "illegality" of the EULA per se, it simply renders a clause like the quoted 7 from that other game EULA void.

Edited December 31, 2012 by EtherealN

[bn880]

Still think the EULA point 9 could be clarified so that the explanations don't need to be made in a thread on a forum. As to what I said, that the license can be RE-SOLD and transferred to a 3rd party recipient .

 

In any case, I think I almost got my answer when I made my second post and then it was confirmed by you. ED is not nasty with their licenses as I was originally worried. ;) Some of the other companies' EULA's you mentioned might be, and users/customers might be wise to challenge them if they live in the EU.

 

Anyway, I'm happy I got my answer and will buy the A10 module, just would suggest a small bit of clarification in EULA. :pilotfly:

[bn880]

There, I even fixed the thread title so that future customers don't need to spend time reading through this or be terribly worried. Fiar's fair. ;)

[EtherealN]

Okey, the EULA is not clear exactly about re-selling. I'll bring it up.

 

But my point is, regarding "legality", that it explicitly informs the user that local law trumps. As you know, this means that whatever the EULA says, is perceived to say, or doesn't even mention at all, in the EU you can still re-sell.

 

At the end of the day though, I will thank you for one thing: you actually read it! :D

(There is a case where a company put in a "tell us your read this and we'll give you money" clause in the EULA, and it took months, and thousands of sold copies, until anyone did. :) )

EDIT: That case and similars caused me a lot of extra enjoyment from the Southpark Episode "The Human CentiPad". Possibly one of their best. :)

Edited December 31, 2012 by EtherealN

[bn880]

:lol: Didn't hear of that one until now.

 

Happy New Year by the way!