Its not just me, games used to be better

[Davros]

If you buy a physical thing, you cannot make an exact copy of that thing and then either return the original or resell the copies.

Yes you can in many cases it's just usually it's not practical
example heres a poster a physical product I can absolutely make an identical copy

Heres a candle

again possible to make an identical copy

Heres a Monstertech Hotas desk mount (I bought one) and apart from 2 custom cut 4mm steel plates (which I could easily get made) it's all off the shelf components easy enough to make an identical copy

have to figure out how to fairly protect digital asset creation in the same way we protect physical asset creation.

We have it's called the law, other products manage to survive without additional protections no need for an eula

 

[see colon]

Those physical things require you to have the materials required and some amount of skill to reproduce, though. Making a candle is not drag and drop. And reproducing a poster, besides the cost of the oversized printer, won't ever actually be identical. If you scan it, you will pick up imperfections and anomalies from the original prints microscopic spatter pattern that get amplified. And it's highly unlikely you will be able to replicate the original poster identically anyway, because paper stock and printers vary quite a bit from what's available in the commercial space. You can make a copy, but that facsimile won't be as identical as the Doom .wads I pulled from those floppies all those years ago, and at essentially 0 cost, have installed on every computer I've owned since.

 

[Albuquerque]

We have it's called the law, other products manage to survive without additional protections no need for an eula

Again, I think you've overlooked another component of physical assets: physical proof. If the cops raid my house, there's not much I'm gonna be able to do to hide all the contraband facsimilies I've created and sold and hoarded. And even before the cops raid my house, when I've been giving away or selling all those facsimilies to whomever, those copies will have their own unique flaws introduced by imperfect attempts to duplicate them. Those flaws, on their own, create a way to trace back all the bad copies to me and the equipment I've been using to make the copies. There is no such thing as a perfect replica of a physical object, it's functionally impossible from a literal physics perspective.

However, again, copies of digital assets are 100% identical to the original. There is no difference between the digital copy of Blake Stone - ALiens of Gold (blake3d.exe) from thirty years ago, sourced from an EFI partition formatted with the FAT file system, physical housed on a 100MB 4200RPM SCSI MFM-RLL drive, versus the copy I retain now on the GPT partitioned, NTFS formatted logical volume on my 2TB Samsung 990Pro NVMe. There's no fingerprint to trace, no lineage to uncover, the files are literally identical down to the very last bit. When faced with this, the best the MPAA and RIAA could do was clamp down on the obvious transmission methods by invading the file sharing apps and partnering with ISPs to trace where downloads were coming from. It took very little time for people to figure out reasonable ways to defeat this mechanism, and to this very day I can use a $2.99/mo Usenet account to "freely" download just about any media I could want via Sonarr, Lidarr, and Radarr. It never went away, it just changed.

The answer I sort of expected you to give was how the law isn't really well written for digital assets. I think the bigger crux is lawmakers are equally uninformed on how a digital asset really is different than a physical asset, which means they simply are incapable of creating laws which fit the crimes and the methods -- and I'm including "crimes" from the developers and publishers here, too. Even worse, those uninformed lawmakers are "taught" by the same law firms endlessly funded by enormous publishing conglomerates and massive software dev shops (Microsoft, Adobe, etc.) You and I and Nesh and anyone else in this thread don't have the zillions of dollars to go to our governments and tell them our side of the story, and so nobody who matters (eg those making the laws) hears that other side.

Thus, simply asking to handwave away the EULA does nothing, because the lawmakers aren't educated on these topics. In fact, at this moment, the lawmakers would probably interpret such an ask as enabling lawlessness, because they've been told as much for decades.

Any different suggestions?

 

[Davros]

Blake Stone - ALiens of Gold

Which I have on original 3.5 inch floppy btw

I think you've overlooked another component of physical assets: physical proof

Now your changing the goal posts and adding additional caveats to your original premise that you cant make identical copies of an object

There is no such thing as a perfect replica of a physical object,

The fact that for example a screw factory can churn out millions of screws all identical (and other parties could also do) sort of proves you can make identical copies of an object (unless your going to be really pedantic and claim electron positions are probalistic not deterministic ect)

As far as I'm concerned the law is ok, copyright law protects digital assets well enough eula's arn't needed
I don't buy any argument that they are because software is copy able, that's taken care of by copyright law
If a clause in an elua concerns software being copy able its covered by copyright
if a clause is not concerned with software being copy able, then "an eula is needed because software is copy able" doesn't apply

 

[Albuquerque]

Which I have on original 3.5 inch floppy btw

Now your changing the goal posts and adding additional caveats to your original premise that you cant make identical copies of an object

You can't make identical copies of a physical object. I literally just got done explaining you can't make identical physical copies of an object @see colon bet me to it, but the point is, physical duplication always (always, always) results in deviations from the original. Digital copies of digital assets do not. Do you somehow disagree with this?

The fact that for example a screw factory can churn out millions of screws all identical (and other parties could also do) sort of proves you can make identical copies of an object (unless your going to be really pedantic and claim electron positions are probalistic not deterministic ect)

Two problems you've seem to have forgotten:

#1 - Part A: The "original" in your example is the casting equipment at the source manufacturer. If you wanted to copy that screw design (eg you aren't the original manufacturer) then you do not have access to the original casting equpment at that manufacturer; you'll have to come up with your own mechanisms. Also, you do not have access to the unique, constituent materials which were used to create the originals (there isn't one steel recipe, in fact there are more than 3,000 "grades" of steel documented.) As such, the combination of your attempt to replicate their methods, mechanisms, and source materials will result in a different part. It may "look" the same to the naked eye, but the metallurgy and the machining marks will end up slightly different.

#1 - Part B: Using screws as an example is absurdly reductionist. If perfect-duplication-of-physical-item technology existed, the target would be those physical items which exist in very small numbers. Rare historical artifacts (paintings, vases, sculptures, etc), exotic automobiles, incredibly expensive electronics, very limited types of foods of beverages (think $15,000 bottles of whiskey.) There's no point in creating a "make duplicate screws" theft ring, because there's basically no profit to be made in it. Which actually is a nice segway to item number 2...

#2: Back to attempting perfect duplicates of screws, you've still ignored physical scarcity (which I covered two replies ago.) To make millions of duplicate screws, you must pay for the machining equipment, the people to run the equipment, a physical location to place all those machines and people, the utility needs of the building (power for the machines and lights and HVAC, water and sewer for the people to have their legally-mandated bathroom breaks), and then the cost of the materials in which to cast the screws. This is, quite literally, millions of dollars. You haven't become a copycat screw design thief at all, you've just become another screw manufacturer at this point.

Neither of these apply to digital assets. The physical scarcity cost of copying a digital item is pennies (in USD, maybe more or less depending on your geographic location), which simply boils down to the fractional cost of the storage space it consumes. Copying a physical thing absolutely required physical "stuff" to make the copy; digital things need a tiny bit more storage.

You continue to compare things which are incomparable.

I don't buy any argument that they are because software is copy able, that's taken care of by copyright law

I'm still really curious -- what about abolishing a EULA stops shitty games? I never understood the parallel. Can you explain your thoughts here?

 

[Shifty Geezer]

What specifics are necessary in an EULA to enforce fair legal protection that aren't covered by existing copyright? What EULA terms are unreasonable and aren't about sane protection?

On the more abstract discussion, it's worth noting that copyright was created not to stop an exact physical replica, but to stop the replication of the material in the original. It didn't matter whether you were copying a printed book made on velum in one font by printing your own duplicate of the words in the same font also on velum or in a different font printing on paper - it was the duplication of the words that was being protected.

There are different laws for copying products such as registered designs, patents, and trademarks. It very much is possible to copy and manufacture a remarkably similar product, be that screw or iPhone, and sell that within the law. But other protections might prevent you from doing that and attempts to physically copy, at cost to you (not effectively free as on digital content), will come afoul of these such as brand infringement in the case of knock-off Nikes.

 

[Davros]

Thats a very good question Shifty - buggered if I know
AFAICT it's a device that says "here's a list of conditions you must comply with, we on the other hand comply with nothing and are liable for nothing also you agree to waive your rights and btw if any part of this turns out to be illegal then just the illegal bit doesnt apply the rest of it still does. ps: we can change the agreement to anything we want at any time we want your only recourse is to stop using the software and we dont care because we already have your money and you aint getting that back
bad thing is recently makers of physical products have said to each other "Omg have you seen what the software guys are getting away with in their eula's its absolutely outrageous, we need eula's ourselves"

Do you somehow disagree with this?

I'm principle no, but good enough that most people would consider them identical. If i handed you 2 25mm m4 bolts from 2 different sources and said to you are these the same I think you'd say yes
good enough that if i ordered 2 of something I could not sue the supplier on the basis that they are not the same

you've still ignored physical scarcity

No i haven't physical scarcity wasnt part of your original claim it's something you added after

I'm still really curious -- what about abolishing a EULA stops shitty games?

It would reduce the protections software makers grant themselves to disclaim liability

 

[Albuquerque]

What specifics are necessary in an EULA to enforce fair legal protection that aren't covered y existing copyright?

Trademark, copyright, and EULAs do cover some of the same stuff, however there are also differences. Funny anecdote time: a lot of physical things have EULA-like language built into them. I'll touch on a few examples as I reply to your question. Also consider, fair legal protection has to exist for both the consumer and the dev / publisher.

Y'all ok with another long reply? This is what happens when you don't have a job, lol!

First, the EULA isn't just about protecting the software dev shop, there are multiple parts in there which also protect the customer. The big parts of the EULA are typically things like what and how data is (or isn't) collected, how the software is to be used or not used, how to limit liabilities of the software developer / publisher, and how any legal disputes will be handled (in terms of location of jurisdiction.) They might also include online integration details,, including how updates might be sent, and how access to the software might be revoked, and what expectations a consumer might have of their online experience. Every one of these are things which wouldn't be directly covered by a copyright, so EULA is going to still be a thing. Realistically, a EULA could probably termed as a slightly more advanced Terms of Use agreement, because they DO cover most of the same things.

Data collection: pretty much any app which receives digital updates will end up collecting some quantity of data. Legally, the software dev / publisher / whoever needs to disclose what they're collecting, how they collect it, and who they allow to see it. I'm sure they'd rather simply NOT tell you any of this, fortunately laws have changed in favor of the consumer in that space. GDPR and CPRA to the rescue!! If you find the app is collecting data which is not specifically called out OR they're handling the data in a way not clearly defined by the EULA, then these new laws make it a lot easier to really hammer a badly behaved software publisher. Regardless, the software needs to notify you of of this data privacy stuff, and that's not in Copyright.

How the software should or shouldn't be used, essentially the Fitness for Use declaration, outlines the intent and to some degree the warranty of the software to deliver on its indended use case -- and to declare limits on what it should not be used for. This is easier to think about in business terms; Excel spreadsheets can be used for tracking all financial records of a company, but Microsoft isn't delivering a financial management package -- they're delivering a spreadsheet application. Microsoft can certainly be held liable for failures in terms of spreadsheet application things: miscalculations, formatting errors, problems where the Excel app eats your entire harddrive and sends a million full-black pages to your printer. They cannot be reasonably held liable for the entire financial collapse of your empire because you decided to use Excel and a shitload of VBA and macros and formulas to hand-create your own financial planning system instead of a proper financial management application. This isn't covered by Copyright, although again you might be able to argue it can be part of a Terms of Use agreement.

Limits of Liabilities is a curious one. Legally, the software dev can write whatever they want in here, usually it's the absurd "NO matter what our software does, there are no warranties expressed or implied and we're not liable for ANY losses, ever!!" As much as we all hate that stupid language, I can say from direct experience those statements of zero liability often collapse during a lawsuit. Despite this, the shitty language about no warranties and no liability are ABSOLUTELY in the software developer's best interest to state and "make you" agree to. Why even write such a thing then? Because if they make no attempt to limit their liabilities, then legally defending why they shouldn't be held liable becomes radically more difficult. It's akin to the "WARNING! THIS CONTAINS NUTS!" label on a jar of peanut butter. Yeah most folks are going to say it's stupid, yet there have been successful lawsuits where someone died of anaphylactic shock from eating peanut butter without somehow realizing it contained nuts. Everyone hates the legalese, we're all required to deal with it regardless. This information isn't covered by copyright.

Location of legal Jurisdiction and legal dispute: when it's lawsuit time, having a statement of jurisdiction matters for so many reasons. Not so much if you vs the company are in the same country, but it gets a lot crazier when you cross international borders. I think in order to sell software in the UK, EU, Australia, Canada, the US, and a few other places, you're mandated to include this jurisdiction notification as part of the EULA. Further, any statements or claims of methods of legal dispute CAN be legally binding, but just like the limits of liabilty statement earlier, they aren't always binding. And just like before, the EULA needs to make the statement regardless, otherwise it opens them up to potentially more liability. This information isn't covered by copyright.

Online things: man, this is huge. What is the extent of the dev/publisher's liabilities in online performance? Can you sue them for showing that you were dead last in an online PvP game which another player Twitch-streamed the game and ten thousand people saw you suck? Probably not, but it has to be called out that it might happen. Can you sue for a million dollars because you lost a ranked match which cost you a world ranking score? Probably not, but it has to be called out. Can you sue them for not enough servers to be able to even join an online game? Maybe, but can you get back more than you paid for the game itself? Even then, maybe, if it involves the cost of your legal fees to get them to remunerate you. What about seeing bad words in chat, can you sue for that, especially if a minor somehow saw it?

Let's get to the worst of it: license revocation. What about YOU being the one who was using bad words in chat, and you got booted even if only for a few days? Can you sue for lost time? What if you act so badly over a course of time that you're no longer allowed to be online at all, thereby limiting the publisher's exposure to OTHER lawsuits about YOUR behavior? Can you sue for not being allowed to be a troll? You paid for the software, so why can't you say anti-semitic, or anti-women, or anti-gay, or anti-black commentary on a platform you're funding?!? (/Elon) What about the epically shitty anti-cheat software that root-kits your OS? If you remove that software, are you allowed to play the game? And if not, are you due a refund? There's a lot of gray area I just covered, but the boilerplate language has to exist or else it becomes difficult to defend against, even if it ends up being language that isn't upheld in court.

There's plenty to hate about licensing and the whole "you don't own it" stuff. Yeah, if I buy a fully local game and it gets disabled after a handful of years, even though I have zero dependency on their cloud shit? FUCK YOU. I think that should be legally protected from NEVER HAPPENING. There's plenty to hate in the licensing space, but completely removing EULAs isn't a reasonable ask given the world we live in today -- and I mean that in both directions, because consumers do some really dumb shit and, despite it being easy to make all publishers and software devs the "bad guys", they still deserve some quantity of protection. IF for no other reason than: think of tiny indie devs getting sued for some of the dumb online shit I mentioned earlier. You didn't have a EULA to lay down that first coat of legally non-binding language? Welp, good luck with the incoming fight. It sucks that we have to think this way, but we DO have to think this way.

 

[Albuquerque]

I'm principle no, but good enough that most people would consider them identical. If i handed you 2 25mm m4 bolts from 2 different sources and said to you are these the same I think you'd say yes
good enough that if i ordered 2 of something I could not sue the supplier on the basis that they are not the same

Sure, if we're talking about screws, or nuts and bolts, or nails, or something tiny and I'll even say "irrelevant" as those items are, then I agree. But again, using screws as an example is incredibly reductionist and not akin to copying $60+ digital assets perfectly. I think I covered all of this in my reply to you earlier.

No i haven't physical scarcity wasnt part of your original claim it's something you added after

I make some long replies, so I can understand why you missed it: https://forum.beyond3d.com/threads/its-not-just-me-games-used-to-be-better.63741/post-2357975

If you buy a physical thing, you cannot make an exact copy of that thing and then either return the original or resell the copies. Creators, manufacturers and even resellers of physical items (to include yourself if you're on a marketplace website) can generally depend on physical scarcity to ensure their items aren't being copied and resold. However, if you buy a digital thing, you CAN make a perfect copy of it, and you CAN (potentially) return the original for your money back and/or resell the copies. This is a very real difference between physical and digital assets, and it's not contestable. There's no scarcity in equipment or materials or labor in copying a digital thing, you just... do. And now there's as many of them as you want.

See? It's right there

The cost of copying screws is actually incredibly high, to the point where it makes no sense to copy them. And despite them looking the same, they still aren't perfect copies. Digital copies cost essentially nothing, and they're always perfect copies -- no matter if it's a tiny text file (a screw) or a mult-hundred gigabyte game (an entire 120" microLED television, one of the bigass $100k ones.) Physical assets and digital assets are absolutely not equivalent.

It would reduce the protections software makers grant themselves to disclaim liability

I think that liability goes both ways, but I'll let you read my reply to Scotty above. Suffice it to say, EULAs cover a ton of shit that doesn't exist elsewhere, and in the modern world of everyone being sue-happy (and that includes consumers) it isn't something we can reasonably get rid of.

 

[Daozang]

Although I can't stand legal jargon (sorry @Albuquerque), I really am enjoying the weird turn this thread took, and also the banter.

 

[Albuquerque]

I don't think anyone who is sane actually likes legal jargon

No small part of my role at $LastJob dealt with a lot of software licensing legalities, where I represented a Fortune 200 enterprise consumer here in Memphis, TN. It's interesting how big companies will absolutely negotiate on EULA terms, especially surrounding liabilities, fitness for use terms, and jurisdiction / legal recourse topics. The inside legal team at my job absolutely mandated you went through the entire EULA and redlined it up, because if inside legal went through it first and found a ton of shit you didn't, then your ass was gonna get chewed. We could go for literally weeks, back and forth, vying for some version of a mutually acceptable set of terms in the EULA.

There was NEVER going to be a point where a EULA didn't exist, because even if it somehow didn't, our inside legal team would've formulated one for our own protection.

One thing that hasn't seemed to come up yet: software returns and refunds. One of many amazing parts of the Steam platform is permitting a refund of a newly purchased game, so long as it's within two hours. I truly believe this helps with SO MANY of the terrible game complaints. Yup, there's a few examples of people racing to beat a game before the two hours is up, and Steam seems to be aware these exist but also in very small numbers and doesn't seem to care. And sure, there may be game-breaking bugs which don't occur in two hours, perhaps you have to play for hundreds of hours before your saved game file is corrupted due to some strange integer variable overflow or something. Still, being able to "try" a game for two hours feels like it should take a lot of sting out of what might have been a terrible purchase.

Unfortunately, this effectively removes physical distribution from the equation. I can see a host of problems with a two-hour return window for physically-based installation media. Traffic? Distance to and from home? What if it takes a freakin' hour to install the media after it tries to pull down a mega-buttload of updates across your slow internet and/or their slow servers?

 

[see colon]

One thing that hasn't seemed to come up yet: software returns and refunds. One of many amazing parts of the Steam platform is permitting a refund of a newly purchased game, so long as it's within two hours. I truly believe this helps with SO MANY of the terrible game complaints. Yup, there's a few examples of people racing to beat a game before the two hours is up, and Steam seems to be aware these exist but also in very small numbers and doesn't seem to care. And sure, there may be game-breaking bugs which don't occur in two hours, perhaps you have to play for hundreds of hours before your saved game file is corrupted due to some strange integer variable overflow or something. Still, being able to "try" a game for two hours feels like it should take a lot of sting out of what might have been a terrible purchase.

Unfortunately, this effectively removes physical distribution from the equation. I can see a host of problems with a two-hour return window for physically-based installation media. Traffic? Distance to and from home? What if it takes a freakin' hour to install the media after it tries to pull down a mega-buttload of updates across your slow internet and/or their slow servers?

GOG is 30 days after purchase with no limitation on time played. And physical games media is often not returnable in physical form, only exchangeable for the same item. I'm sure it's different in every municipality, but I've lived on both coasts of the US and it was essentially the same policy nearly everywhere. Back when I worked at EB Games, we used this limitation as an incentive to sell used games. New games, if you don't like the game, you're sort of stuck with it. You can trade it in for less, of course, but if you buy the used one... Well it's a used game now and it's a used game when you bring it back. So you can exchange it and get the full value applied to another game.

I know some people who abuse the return policies of Steam/GOG, and I find it insane. I've never requested a refund from either storefront.