Goods, services, games and law

[Amigoltu]

Rather interesting, this video I watched recently:

Spoiler: Link

Interesting comments under it, as well. Got me thinking about some video I've watched a few years ago about software purchases and "games as a service".
Definitions:
Goods - tangible items/objects, that you can purchase.
Services - works/activities provided by other persons.

Like a pencil, table or a car, a piece of software is a goods, and thus, there are a few things to consider...

Once you've paid the full price for software, you own it. Well, not the software itself, but a copy of it. And while you don't own the brand or the distribution rights to that software, you DO fully own the copy, that you've purchased. For a lifetime. Since a copy of software is a goods, there can be no terms of service, or use, applied to you. And this means a lot. For example, technically, cracking or reverse-engineering your copy of software is NOT illegal. What's illegal, is to distribute that copy of software (or any reverse-engineered part of it). But doing it for yourself is fine, law-wise. Because it's YOUR copy of software. Just like you can repair or customize a table or chair, that you've bought, you can do the same with a copy of software, that you've bought. They are both goods.

Now, what can a company actually do legally? They can, at any point, cut any services they are providing to you, should you break the terms of that service. For example, we could take a game like World of Warcraft. The reason you pay for this game twice over (or used to) is because first, you paid for the software and then, you pay monthly for service they provide along with the game - their servers. If you break the TOS of this game, they could deny you entry to their servers, thus cutting off the service. They'd be well within their rights to do so.

However, at the same time, you still own the copy of the software itself (the game). And while it can be argued, whether the company would be OBLIGED to give you a way to at least set up your own server, the thing that is almost certain here - you are well within your rights to reverse-engineer the game, develop your own server-software and launch your own private server. Not only that, but you quite likely (possibly?)wouldn't break the law even if you used someone else's server repack.

Lastly, this means, that both playing on AND running private WoW servers is technically not illegal. Running your own developed server =/= distributing copyrighted software. And, obviously, playing on private servers isn't illegal either.

EDIT: all of this also means, that teaching other people how to reverse-engineer software, or even providing tools to do it isn't illegal either.

EDIT: all of this also means, that a company doesn't have a right to make user's software unusable. No matter how old that software is. The company also has no right to even update that software without explicit user's consent. Any action, that would make the version of the software, that the user had, unusable without that user's consent, should be illegal. At which point, the company would be obliged to repay the user full price of the software, or the user would have a right to sue.

 

[Retera]

So how's your private WoW server going?

 

[MasterBlaster]

Like a pencil, table or a car, a piece of software is a goods

I will stop you right here, because you're wrong - in many cases you're not buying the software itself, but the licence to use that software. That's a service.

Once you've paid the full price for software, you own it. Well, not the software itself, but a copy of it. And while you don't own the brand or the distribution rights to that software, you DO fully own the copy, that you've purchased.

No, you don't. The copy that you get is provided to you as a part of your licence to use it. It's like... renting a car - yes, you have the car in your possession, but that doesn't mean that you own it. The vehicle is provided to you as means to execute your purchased rights to drive it. The same goes for video games. The game client that you get isn't yours, it's just given to you so that you have a way to do what you paid for, i.e. play the game.

For example, technically, cracking or reverse-engineering your copy of software is NOT illegal.

It is illegal, because you don't own your copy of the software, but the right to use it according to TOS which often forbid tinkering with the software.

Just like you can repair or customize a table or chair, that you've bought, you can do the same with a copy of software, that you've bought.

That's a horrible comparison. Once again, you're not buying the software itself, but the right to use it, thus a more accurate comparison would be renting furniture, in which case you're absolutely not allowed to tinker with it in any way that's not permitted by your agreement with the furniture owner.

 

[Amigoltu]

I will stop you right here, because you're wrong - in many cases you're not buying the software itself, but the licence to use that software. That's a service.

Incorrect. You buy a copy of a software. That's a goods.

Buying your copy of software IS just like buying any physical item - pencil, table or car. You don't buy a "license" to use any of those things. It's ridiculous to even suggest something like that.

The ridiculousness of the claim becomes even more apparent when you so much as question - how in the world would companies make sure you use your copy of software according to their ToS? They can cut the services (like access to their servers), but the only way of denying you usage of your product (goods) is to physically get into your machine and delete it. Which, of course, is illegal. It's just like coming to your house and taking away the table, or pencil, or car you've bought.

You can call usage of public (company's) servers a service... Because it IS. But the copy of the software you purchase is goods, not a service.

Of course, there are exceptions to this. For example, there are pieces of software, that you don't really buy outright, but rather, subscribe. That IS a service, as that software is only rented to you. Just as you say, in that case, you only get a license to use that software. But if you buy a copy of software for full price, you've bought it as goods. And everything from my OP applies.

No, you don't. The copy that you get is provided to you as a part of your licence to use it. It's like... renting a car [...]

It is illegal, because you don't own your copy of the software, but the right to use it according to TOS which often forbid tinkering with the software.

That's a horrible comparison. Once again, you're not buying the software itself, but the right to use it [...]

All three statements incorrect for the reasons pointed out above.

 

[Retera]

A lot of people when they give advice go on to say that they are not lawyers so their advice is not legal advice. Would you say that about yourself or is the advice you are giving legal advice?

 

[MasterBlaster]

You buy a copy of a software.

Like, have you ever bothered to read any online store terms & conditions? Or any legal notice on a physical game that you bought*? They say exactly what I'm saying and they've been written by professional lawyers. So what, do you mean to tell me that you know the law better than people who spent years studying it, passed government approved exams and are now paid huge cash for legal counselling? Come on...

* Yes, I've checked. For instance, on my Diablo III box there's a text that says that "using this software falls under terms and conditions available at" and links to the Blizzard EULA, which directly states that you're not buying the software, but a licence to use it. The same is stated in the manual.

Buying your copy of software IS just like buying any physical item - pencil, table or car. You don't buy a "license" to use any of those things.

Yes, you do? Or rather - yes, you can. Obviously, you can buy stuff, i.e. pay someone to transfer ownership of a given item to you, but many things can also be rented, which basically means that you enter an agreement where you pay someone for the right (licence) to use their property under some conditions (ToS).

Like, if you don't believe me, just google "rent cars / furniture / whatever" and see for yourself.

The ridiculousness of the claim becomes even more apparent when you so much as question - how in the world would companies make sure you use your copy of software according to their ToS?

For instance by requiring the game to be registered in some online service, which is verified when you launch the client. I mean, have you ever wondered why all the "online only" stuff and authentication methods exist? Or why games these days are launched through store launchers that check the integrity of the client before starting the game? To control whether you use the software according to the ToS.

Obviously, you can circumvent that by tampering with the client to disable various protections that it has, but that's piracy.

They can cut the services (like access to their servers), but the only way of denying you usage of your product (goods) is to physically get into your machine and delete it. Which, of course, is illegal. It's just like coming to your house and taking away the table, or pencil, or car you've bought.

But if you rent a table, pencil or a car and you use it in a way that wasn't specified in the deal then the owner can demand the return of their property or if that property is damaged, a proper compensation. And if you deny it, they'll take you to court and the legal system will do the rest.

Same with video games.

Obviously, the publisher won't hack your PC and delete the software from your hard drive, but legally - you should delete it if you lose the licence. Or if the ToS don't forbid it, you can just let the client sit on your hard drive, but only as long as you don't use it for anything. If you don't delete the software or keep using it despite no longer having the licence and the publisher finds out, they can take you to court and let the legal system do its thing.

The only reason why it's not happening is that identifying people who use illegal software and sending the legal system against them is more trouble than it's worth. I mean, your average Joe won't have the skill to circumvent even the most basic online authentication, so if your game has that and you cut a person from your authentication servers, they won't be able to use the game client anyway, so why would you care if they still have it or not?

On the other hand, if someone is distributing ways of circumventing protections, i.e. cracks or private servers, then you might as well go after them, but even then - it's more effective to just make it more convenient to get games legally than chase pirates, hence the rise of online distribution and limiting taking legal measures only to really popular sites / groups, e.g. Nostalrius (one of the most known WoW private servers that was shut down by Blizzard).

For example, there are pieces of software, that you don't really buy outright, but rather, subscribe. That IS a service, as that software is only rented to you.

In this day and age - that's pretty much every AAA game and every indie game distributed by popular store fronts. In other words, if you buy something on Battle.Net, Epic Games Store, Steam or whatever, then that's precisely what happens - you pay for the game licence, not the software itself. The same is true if you buy a given product at a local retailer, but then your licence is held in the unique product key and the physical disk is only for convenience.

But if you buy a copy of software for full price, you've bought it as goods.

First, what do you even mean by "full price"? Games are priced very differently - some cost just a few dollars, others go up to 100$ or more. So, which one is it? Or do you mean "full" as in "not discounted" - in which case, I don't understand why you'd assume that buying the same thing at a lower price (e.g. due to some sale or whatever) would change what that thing is? Or maybe you mean "full" as in "higher", i.e. you're assuming that a game will cost more than some service that grants you access to that game - in which case, can you provide me a rule that says that this must be the case?

Because the way I see it, the publisher can price their game however they see fit, for instance, Blizzard could sell WoW expansions for 1$ and then ask for 100$ for the monthly subscription. I mean, it would be dumb as heck, but they absolutely could do it. That shift in price wouldn't change the status of the products, like it wouldn't suddenly classify the subscription as "goods". That's totally absurd - ergo, I don't see how the price matters here.