Torque EULA Discussion

#1 EDITED Repost from: http://www.torquepowered.com/community/blogs/view/19963/8#comment-159301


No place in legal writing are we guaranteed Bug fix updates, and many other naturally assumed related services.

Quote:1.9. "Software" includes the source code and executable code provided to You in connection with Your purchase and all associated documentation (if any). The Software also includes any update to the Software that corrects bugs or provides minor feature enhancements. The Software does not include next generation versions of the Software or versions of the Software that include major feature enhancements.

Is not stating much at all, except including a conditional IF about bugs being fixed. Definition is not stated what major feature enhancements could possible be. And the wording itself cast doubt to the necessity of provide documentation at all.

Quote:
You may install the Software on up to two (2) Personal Computers.

I have way more then two Personal Computers, i use for development. This is a productivity crippling stipulation. And pointless because the HACK in this case is using an unsecured(convenience of access with all my computers) single location sever and working with the Torque files remotely.

The full Studio License bit is just plain stupid, unless your studio have fewer then 10 employee, the added cost equal more then ^exotic Game Engines such as Unigine™.

Part 2.6 and 2.7 are absurdly convoluted almost as if left open for future interpretation on purpose.

The question of Intellectual Property Rights in regards to ownership of modification to the "Software" is never clarified, and most wording seem to void rightful titles of ownership in regards with EULA termination.

And the TorquePowered poop to top off this crumbling cake is Part 9.5! My god, you expect us to be rather stupid huh?

Quote:This EULA expresses the parties' final agreement as to the subject matter hereof and supersedes all prior agreements and understandings relating thereto.

I love that last bit:supersedes all prior agreements and understandings relating thereto.


With this new "branding", I do not feel safe assuming any of the old business practice relating to the old Garage Games.

It is time for TorquePowered to put all expectations into legal writing, so there is less room for disappointment and misunderstanding later down the road.

As it stands now, every move TorquePowered have made after the IA takeover leaves me more and more dubious of the actual intent. And personally wondering to myself if this is the type of CO. I wish to be supporting at all...

All this 'Good News' is more a harbinger of bad things coming. Dont smear elephant crap in my face and call it zit cream.


EDITED Repost from: http://www.torquepowered.com/community/blogs/view/19963/8#comment-159309

My lawyer dug up legal case precedence where by using 'First-sale doctrine Law' and 'Clayton Antitrust Act' examples, expressed legal power of any EULA is only true to the agreement made at time of sale. No other modification have retrospective power over the EULA agreed at time of purchase. Only one (the original) EULA is legally binding.

The new EULA will only effect me(or anyone else for that matter) when relicensing is required as stated by the original EULA agreement. The only EULA agreement that is legal is the EULA agreement that accompanied the product it covers.

In basic English, the only lawful binding contract is the one found along with the Torque product at the time of licensing, and acquiring the product. So be sure to have an unadulterated backup of weather Torque products you may be using.

Furthermore EULA legal enforcement such as this one is an issue of the Supreme Court of the United States, not individual state laws unless all product sales are restricted to that state.

Disclaimer should be understood because the nature of legal arguments. Get your own lawyer to clarify this new EULA and general EULA law for you, dont take my word for it.

My Lawyer also advises the winner in this type of case is often the party who have the most time and money to spend on the legal battle.

If TorquePowered are going to start playing dirty it is best to just stop playing with them.


That new EULA is a shameful mess, or perhaps a devious trick, the legal department should have known. Of course previously no one had much reason to complain about EULA English, because it was the 'Spirit of the Law' that was always intact. IA is working hard to prove they do not have the old GG 'spirit'. IA needs to be dealt with by the 'Word of the Law'; and i expect clear precises language to define that 'Word of the Law'.

#2 repost with addendum (if that's the correct word ...)

Just thinking, but it could be useful to take some time and try and define a few rough boundaries on the non-game thing, just to give people a little more of a concrete idea of "does and don'ts" before being put off by a vague EULA.

A lone guy doing freelance architectural visualization or a small team doing in-house simulation is very different from a larger organization with substantial financial backing that may stray into competition for tools.

Whilst wide-capture wording in the EULA helps legally to protect Torque/IA from predatory big boys, it's obviously baffling the little guy, who I expect (based on wildly guessing) make up most of the folks active on the site.

#3 @Steve: the legal definition of game is quite limited: "a product designed and sold to entertain the end-user". I asked my law people if an educational game ia a game or not because I had a plan to try that niche market and they told me:

"No, educational games are designed to educate through a game and sold as educational tools for parents, guardians and schools. Before publishing any educational game you need to ask GarageGames for permission to do that."

So, that said, the EULA as it is since I got here forbids all but games. That's for the legal wording. Eric in the other post made an opening to rephrase that, so all we can do is wait.

As the new EULA doesn't forbid non-games I barely see the point of this discussion. As I've told before the only real question could be about the fees related to entering into an addendum (drawing a clear line between Free and Non-Free so one can properly budget).

BTW, the clause 2.6 where it reads:

"You will grant InstantAction a worldwide, perpetual, non-exclusive, royalty-free license to use, distribute, and make derivative works from, the Permitted Derivative Work."

is not binding in the EU because is in breach the law in 99% of EU countries (sole exception is England, not even the whole UK)... I think that is a "US only" rule. In EU nobody can be forced to give away for free and forever his work and any such clause is automatically void and null.

#4 I was under the belief that Permitted Derivative Work meant screenshots/etc for advertising purposes of "this game got made with this engine", etc.

#5 Nope, the Derivative Work is anything made with the Engine and that is not a Game. The 2.6 is quite explicit in the definition of Derivative Work, but at any rate it's a quite well known legal definition (see here).

#6

Quote:is not binding in the EU because is in breach the law in 99% of EU countries

Giuseppe; you are forgetting about section 9.5 and 9.3

This wording is so expressed that no mater what legal standing any part of the EULA may have or may not have, they reserve the right for modification as seen fit to force it into whatever legal definition they need.

#7 @Caylo:
It's not like that in the EU. Even if an EULA do not states so it must be enforced in a way legally acceptable in the destination country. The clauses 9.3 and 9.5 are US only because the US is the sole country worldwide where the law allows to waive any Statutory Right (why do you US people allow that is a mistery to me).

In the EU one can sign in blood a waiver of his Statutory Rights but... it's void and null by law. Any company by the sole fact allowing EU people to buy the license shall comply with the EU laws and EU directives. If not, they are not allowed to sell in the EU. That's the law here and we are quite proud of it :)

#8 @Caylo:
Another simple example is the source code. In the EU the whole source code licensing is just a developer's courtesy because the EU law allows me to decompile and recover the source code for me to fix bugs that are disregarded by the producer, then I'm free to recompile and use it. The same right is granted to me if I'm not happy with the security fixes of any software.

This is why in the EU the source code is often sold along with the software for a fraction of the price of the software itself. Many US software producers (Microsoft included) tried to challenge this EU Directive and failed.

#9 We have Legal Precedence to use as examples in defense for breaching such type of EULA contracts (here in the US), everything is open to argumentation of understood facts to the court of law.

But such back and forth legal maneuvering is a slimy way to try and keep a contract in the first place. And in the case of a contract with such ambiguity, it is best to try and keep the contract as plain and simple as possible, or simply not accept the contract as currently stated.

Few individuals have the knowledge or resources to fight for their legal rights, is the sad truth of the American Legal System.


EDIT: And such facts dont change the fact that such words are in the EULA in the first place... Almost a conflict of 'good faith' understanding.

EDITEDIT: NOT; Almost a conflict of 'good faith' understanding, but it IS a conflict of 'good faith', marks of an evil corporation out to protect its profit margin using any tricks possible.

#10 I can see your point. As an EU citizen I've the acquired habit to skip all those US related clauses so I tend not to evaluate them as they just don't apply here, but thinking about your position as an American I do get your point and your worries. Let's just wait for Eric to clarify those parts of the EULA.

#11 If our product does not contain a "About" or "Credits" screen are we required to implement one just for the "Powered by Torque3D Version" thing?

#12 Pino, you are grossly incorrect on a few things and you are attempting to misinform people with no regard for their livelihood. Nearly liable if not liable. (this is to extend the subject of 1.0 and 1.0.1 not having a clause focused on "games-only" development as seen in section 2 of the Beta5 EULA. This post is not meant to discuss the NEW EULA.)

"Derivative works" is to protect their(TP/GG) rights in order to prevent others from copyright infringement upon the sdk itself.
Example: I can not take a Spice Girls song, change the words and re-sell the song as mine(meaning giving no credit to them or the source of the media used) without the spice girls permission or retribution in some fashion.

To assume "derivative works" is a term that walls us off from making anything besides games with the sdk, is laughable.

- I do not understand how you make the correlations that you post, but you are simply baffling me and posting nonsense that could hinder or damage the efforts of others.


I am amazed TP/GG is letting you post some of this misinformation.

#13 An Associate is not the same as TorquePowered spokesman or authority. If it were so, the associate positions would never have freedom to express opinions or thoughts outside the authority of TorquePowered censorship.

The NEW EULA, as worded right now use Derivative Works to also define anything the licensee build with the 'software'.

eb, you are using 'good faith' understanding of the wording, what truly can not be applied along with so much other wording of the NEW EULA. (EDIT: and you actually CAN take a Spice Girls song, change the words and re-sell the song as "mine" without the spice girls permission. That falls under what is called Fair Use, but requires citation of sources to be legal.)

At the same time the use of "derivative works" is not definition for what may or may not be legal under the NEW EULA.

EDIT: derivative works seems to be any type of engine code modification an licensee may make, and this puts into question Intellectual Property Rights, as they reserve the right to rip you off(Part 2.6 and 2.7), but you can not copy as derivative work anything they may HAVE or are going to do in the future. This convoluted interpretation is why I stated in post #1 that this section of the EULA is absurdly incomprehendable. I see what the EULA is trying to say, but also see what it actually could be used to be saying.

#14 heh, how about you both just give me $50 bucks when I'm proven correct. :P (this post is also not referring to the new eula)

edit: Caylo, about your spice girls song comment;
I meant that if you would claim the song as "yours" that would mean that you would give no credit to the original creators/sources for any portion of the song that you did not alter, be it words of instruments etc etc.

Semantics :P

#15

Quote:To assume "derivative works" is a term that walls us off from making anything besides games with the sdk, is laughable.

And i agree. I am not questioning who is right or wrong. Just stating the NEW EULA English as it reads right now.

EDIT: I understand eb, your example is sound. Semantics(as from the Science of Linguistics) can only be applied to the clues from the words of what IS said, not to what could be implied from the clues from the words that were said. An perfect example of what is terribly wrong with trying to communicate swiftly using the American English language, everything must be carefully clarified, when it comes to writing. And is why i can not seem to make a post without an "EDIT:" and an "EDIT:" tag of some type is necessary when you change or expand the context of a forum post, otherwise you bend the meaning of a forum discussion in regards to posts made AT the time of EDIT or before the EDIT was made.

#16 It is the EULA definition for the word "Game" you should be questioning.

#17 It just occurred to me to question my own Torque project in line with the EULA. I have alway been thoughtful of the EULA, believing i have practice it with 'good faith', and up to the time of this message posting I have been debating the WHAT of the New EULA not the HOW it (and past EULA) may effect the content of my project.

If only a "game" can be built from Torque, and a game is defined as:"a product designed and sold to entertain the end-user" but with "educational games: are designed to educate". Where could my project what is an allegorical fictitious tale designed to teach the 'player' how to think differently in the presence of normally seemingly logical problems, fit into this? I have spent my full career as a Torque community member working on this project. I have invested in 5 years of Higher Education to be able to write and comprehend the scope of this project. I have suffered the indignity of night school, to catch up on missing parts from my college education.

I do not truly want to think there is a difference between GAME and Educational (by design) Game. And my project is hardly comparable to what most people would consider being a computer game. But not beyond the 'good faith' understanding of the old EULA.

EDIT: I am lucky that my accumulation of content for this project is not dependent on Torque technology specifically.

#18 Casual reply; Even though I understand your cautiousness I think that if you're going to dive into speculating the definition of each word, then sooner or later every word loses it's functional placement within the statement, let alone it's meaning.[..just my opinion, because of course you're free to analyze anything as much as you like.]

Oh and I would imagine that, within reason, your final product would be categorized upon it's majority of interaction, it's name and fashion of marketing for consumer use.

My reply to your edit about semantics: Again, Semantics :P

#19 I am well educated in the science of Linguists what is all about the use and function, beyond simple definition and delving deep into actual communicated meaning by understanding techniques and ability of the human mind to form coherent comprehensible and consistent exchange of abstract or tangible complex thoughts ideas and feeling. Think of it as the psychology of communication, in very simple, yet not fully correct terms.

I do not often speculate the meanings of words. Communication have far to much value for meanings to be speculated.

And I am not an English Major, who often do enjoy word play as an exercise of speculation over perceived meanings.

Quote:I would imagine that, within reason, your final product would be categorized upon it's majority of interaction

This assumption is what i have always assumed. But assumptions have no excuse in the legal world.

Be sure you are not confusing the word semantics with the word connotation or the word denotation, three words with separate meanings that should not be confused with each other.

#20 @eb:
Man, you really have your own special way to communicate :) I suspected you had some issues with a “Giuseppe De Francesco” in your past, then I remembered your recent posts in the T3D documentation thread, so actually I have to give up my usual First Place winner position of the “Man, you have a temper!” award… you definitely outrank me :)

[Note: the above is just a friendly joke to ease the thread’s spirits; it’s neither a personal attack nor sarcasm]

The information I posted about the notion of Derivative Work is not mine, but I’ll tell to our legal dept. that you disagree with their reading :) BTW, that clause is explicitly citing “Genre Kits” as Permitted Derivative Work: to make such a Kit one doesn’t have to hack the source code. I can prepare a set of scripts and assets in T3D or just a Game project template in Torque X and have a Genre Kit up and running… defined (properly) as Derivative Work. About Software and Internet the Berne convention proved to be flawed so the WIPO Copyright Treaty was signed to fill the gaps and that is to be used to read those principles.

That said, I wrote that “Derivative Work is anything made with the Engine and that is not a Game” because in our case a Game falls in main aim of the Engine and its EULA so is not to be included in the clause 2.6. Any other product made with the Engine (T3D, TGB, Torque X and so on) is to be considered Derivative Work falling in the clause 2.6 of the EULA. If you do not agree I advise you to get in touch with your lawyer because you’re wrong.

BTW, there is nothing wrong not to freely allow any derivative work when the license has been given for producing games. I only emphasized that the part stating that “you will grant InstantAction a worldwide, perpetual, non-exclusive, royalty-free license to use, distribute, and make derivative works from, the Permitted Derivative Work” is void and null in Europe and there is nothing to do about it due to the impossibility to enforce it (it’s just illegal here). I also suggested that the only open issue about that is to transparently draw a line between Free and Non Free situations when entering into the addendum.