license – Techdirt (original) (raw)

Steam Finally Makes It Clear: You’re Buying A License, Not A Game

from the etched-in-steam dept

We’ve been writing stories about how, when it comes to digital purchases, we typically do not own what we’ve bought. Instead of buying a product, such as the digital version of a video game, what we are instead buying is a non-transferable license to use that product. While readers here will be largely familiar with this annoying concept, most online retailers bury the language for this so deep inside their labyrinthian EULAs that the overwhelming majority of the public is none the wiser. Steam has traditionally been no different, which is how you get confused fans complaining about how a game they bought has been changed via an update, or how your Steam library just disappears when you shove off this mortal coil.

But thanks to a California law that goes into effect next year, this has already changed. Ahead of that law, Steam has updated the messaging users see when purchasing a game to put the lack of game-ownership right in their faces.

Now Valve, seemingly working to comply with a new California law targeting “false advertising” of “digital goods,” has added language to its checkout page to confirm that thinking. “A purchase of a digital product grants a license for the product on Steam,” the Steam cart now tells its customers, with a link to the Steam Subscriber Agreement further below.

California’s AB2426 law, signed by Gov. Gavin Newsom Sept. 26, excludes subscription-only services, free games, and digital goods that offer “permanent offline download to an external storage source to be used without a connection to the internet.” Otherwise, sellers of digital goods cannot use the terms “buy, purchase,” or related terms that would “confer an unrestricted ownership interest in the digital good.” And they must explain, conspicuously, in plain language, that “the digital good is a license” and link to terms and conditions.

Frankly, the idea that this had to be mandated by state law is silly. That law didn’t suddenly educate Valve and other online marketplaces for digital goods that there was a problem here. Surely Valve has fielded questions and/or complaints from consumers in the past who had thought they’d bought a game only to find out they hadn’t. These companies could have proactively decided that informing their customers of the reality in a way that doesn’t take a set of bifocals and a law degree to parse through a EULA or ToS was a good idea. They just didn’t want to, for reasons that I’m sure you can decipher for yourself.

But now consumers will be better informed. And what will be interesting will be to see if this changes anything when it comes to the macro-behavior of customers.

In other words, if there isn’t some precipitous drop in purchases now that this new language is in place, the open and remaining question will be why Valve and companies like it weren’t more upfront about this reality all along?

Filed Under: ab2426, california, copyright, digital goods, false advertising, license, ownership, steam
Companies: valve

from the another-one-down-the-drain dept

Is there any law that Elon Musk actually understands?

The latest is that he’s lost yet another lawsuit, this time (in part) for not understanding copyright law.

There have been a variety of lawsuits regarding data scraping over the past decade, and we’ve long argued that such scraping should be allowed under the law (though sites are free to take technical measures to try to block them). Some of these issues are at stake in the recent Section 230 lawsuit that Ethan Zuckerman filed against Meta. That one is more about middleware/API access.

But pure “scraping” has come up in a number of cases, most notably the LinkedIn / HiQ case, where the 9th Circuit has said that scraping of public information is not a violation of the CFAA, as it was not “unauthorized access.” But the follow-up to that case was that the court still blocked HiQ from scraping LinkedIn, in part because of LinkedIn’s user agreement.

This has created a near total mess, where it is not at all clear if scraping public data on the internet is actually allowed.

This has only become more important in the last few years with the rise of generative AI and the need to get access to as much data as possible to train on.

Internet companies have been pushing to argue that their terms of service can block all kinds of scraping, perhaps relying on the eventual injunction blocking HiQ. Both Meta and ExTwitter sued a scraping company, Bright Data, arguing that its scraping violated their terms of service.

In January, Meta’s case against Bright Data was dismissed at the summary judgment stage. The judge in that case, Edward Chen, found that Meta’s terms of service clearly do not prohibit logged-off scraping of public data.

Now, ExTwitter’s lawsuit against the same company has reached a similar conclusion.

This time, it’s Judge William Alsup, who has dismissed the case for failure to state a claim. Alsup’s decision is a bit more thorough. It highlights that there are two separate issues here: did it violate ExTwitter’s terms of service to access its systems for scraping, and then, separately, to scrape and sell the data.

On the access side, the judge is not convinced by any of the arguments. It’s not trespass to chattels, because that requires some sort of injury.

Critically, the instant complaint alleges no such impairment or deprivation. X Corp. parrots elements, reciting that Bright Data’s “acts have caused injury to X Corp. and . . . will cause damage in the form of impaired condition, quality, and value of its servers, technology infrastructure, services, and reputation” (Amd. Compl. ¶ 102). Its lone deviation from that parroting — a conclusory statement that Bright Data’s “acts have diminished the server capacity that X Corp. can devote to its legitimate users” — fails to move the needle (Amd. Compl. ¶ 98). To say nothing of the fact that, as alleged, Bright Data and its customers are legitimate X users (subject to the Terms), the scraping tools and services they use are reliant on X Corp.’s servers functioning exactly as intended.

It’s not fraud under California law, because there’s no misrepresentation:

Starting with the argument that Bright Data’s technology and tools misrepresented requests, remember X Corp. does not allege that Bright Data or its customers have used their own registered accounts, or any other registered accounts, to scrape data from X, i.e., to access X by sending requests to X Corp.’s servers (for extracting and copying data). Meanwhile, X Corp. acknowledges that one does not need a registered account to access X and send such requests (see Amd. Compl. ¶ 22). X Corp. also acknowledges that X users with registered accounts can access X and send such requests without logging in to their registered accounts

And it’s not tortious interference with a contract, because, again, there’s no damage:

Among the elements of a tortious-interference claim is resulting damage. Pac. Gas & Elec., 791 P.2d at 590. The only damage that X Corp. plausibly pleaded in the instant complaint is that resulting from scraping and selling of data and, by extension, inducing scraping. X Corp. has not alleged any damage resulting from automated access to systems and, by extension, inducing automated access. As explained above, X Corp. has pleaded no impairment or deprivation of X Corp. servers resulting from sending requests to those servers. And, thin allusions to server capacity that could be devoted to “legitimate users” and reputational harm — not redressable under trespass to chattels as a matter of law — are simply too conclusory to be redressable at all. X Corp. will be allowed to seek leave to amend to allege damage (if any) resulting from automated access, as set out at the end of this order. But the instant complaint has failed to state a claim for tortious interference based on such access.

As for the scraping and selling of data, well, there’s no breach there either. And here we get into the copyright portion of the discussion. The question is who has the rights over this particular data. ExTwitter is claiming, somehow, that it has the right to stop scrapers because it has some rights over the data. But, the content is from users. Not ExTwitter. And that’s an issue.

Judge Alsup notes that ExTwitter’s terms give it a license to the content users post, but that’s a copyright license. Not a license to then do other stuff, such as suing others for copying it.

Note the rights X Corp. acquires from X users under the non-exclusive license closely track the exclusive rights of copyright owners under the Copyright Act. The license gives X Corp. rights to reproduce and copy, to adapt and modify, and to distribute and display (Terms 3–4). Section 106 of the Act gives “the owner of copyright . . . the exclusive rights to do and to authorize any of the following”: “to reproduce . . . in copies,” “to prepare derivative works,” “to distribute copies . . . to the public by sale,” and “to display . . . publicly.” 17 U.S.C. § 106. But X Corp. disclaims ownership of X users’ content and does not acquire a right to exclude others from reproducing, adapting, distributing, and displaying it under the non-exclusive license

Alsup notes that ExTwitter could, in theory, acquire the copyright on all content published on the platform instead of licensing it. However, he claims that it probably doesn’t do this because it could impact the company’s Section 230 immunities:

One might ask why X Corp. does not just acquire ownership of X users’ content or grant itself an exclusive license under the Terms. That would jeopardize X Corp.’s safe harbors from civil liability for publishing third-party content. Under Section 230(c)(1) of the Communications Decency Act, social media companies are generally immune from claims based on the publication of information “provided by another information content provider.” 47 U.S.C. § 230(c)(1). Meanwhile, under Section 512(a) of the Digital Millenium Copyright Act (“DMCA”), social media companies can avoid liability for copyright infringement when they “act only as ‘conduits’ for the transmission of information.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1041 (9th Cir. 2013); 17 U.S.C. § 512(a). X Corp. wants it both ways: to keep its safe harbors yet exercise a copyright owner’s right to exclude, wresting fees from those who wish to extract and copy X users’ content.

I have to admit, I’m not sure that a copyright assignment would change the Section 230 analysis… but perhaps? Anyway, it’s a weird hypothetical to raise in this scenario.

The larger point is just that ExTwitter has no right to stop others from copying this data. That’s not part of the rights the company has over the content on the site put there by third-party users.

The upshot is that, invoking state contract and tort law, X Corp. would entrench its own private copyright system that rivals, even conflicts with, the actual copyright system enacted by Congress. X Corp. would yank into its private domain and hold for sale information open to all, exercising a copyright owner’s right to exclude where it has no such right. We are not concerned here with an arm’s length contract between two sophisticated parties in which one or the other adjusts their rights and privileges under federal copyright law. We are instead concerned with a massive regime of adhesive terms imposed by X Corp. that stands to fundamentally alter the rights and privileges of the world at large (or at least hundreds of millions of alleged X users). For the reasons that follow, this order holds that X Corp.’s statelaw claims against Bright Data based on scraping and selling of data are preempted by the Copyright Act

And thus, the claims here also fail.

Arguably, this complaint was less silly than some others (and, yes, Meta made a similar — and similarly failed — complaint). The mess of the HiQ decisions means that the issue of data scraping is still kind of a big unknown under the law. Eventually, the Supreme Court may need to weigh in on scraping, and that’s going to be yet another scary Supreme Court case…

Filed Under: cfaa, contract, data scraping, license, terms of service, william alsup
Companies: bright data, meta, twitter, x

Here We Go Again: Sony Disappears Digital Content That Was Pitched To Customers As ‘Forever’

from the poof-it's-gone dept

And here we go again. We’ve had many, many posts over recent years discussing how, in the digital age, you often don’t actually own what you’ve bought. And before the comments section gets filled with perplexed but rather educated folks talking about how the all these cases involve products in which the terms of service clearly outline that this is a license and not an actual product being bought, just stop. We all know that barely anyone reads a ToS these days and the confusion and anger that occurs in the public is proof of it. So clearly companies are not doing nearly enough to inform their customers of what they are actually purchasing. And if you think that problem is easily solved by staunchly insisting that Nancy down the street steep herself in legalese, then you’re completely divorced from reality.

Which brings us to Sony. Late last year we discussed how when Sony’s deal with the Discovery network ended, it caused a bunch of content to simply disappear from PlayStation owners who bought the content in the PS Store. Due to something completely outside of the public’s control, people who bought content, or thought that’s what they were doing, suddenly lost that content. Without refunds. Or an apology.

And now it’s happening all over again, due to Sony’s acquisition of Crunchyroll all the way back in 2021. Sony-owned Funimation is shutting down its app and website in April, with the company converting Funimation accounts to Crunchyroll accounts instead. All good right? Well…

Funimation, a Sony-owned streaming service for anime, recently announced that subscribers’ digital libraries on the platform will be unavailable after April 2. For years, Funimation had been telling subscribers that they could keep streaming these digital copies of purchased movies and shows, but qualifying it: “forever, but there are some restrictions.”

But soon, people who may have discarded or lost their physical media or lack a way to play DVDs and Blu-rays won’t have a way to access the digital copies that they were entitled to through their physical copy purchase.

Funimation’s announcement is roughly as tone-deaf as it gets. They explain all of these libraries won’t carry over to Crunchyroll because that platform doesn’t support Funimation’s digital content and then makes some vague comments about how Crunchyroll is continuously looking to make itself better. Which, whatever, because that doesn’t change the fact that a bunch of people bought a bunch of digital content that was pitched mostly as being theirs “forever” only to have it all nuked into oblivion as a result of a Sony acquisition. Good times.

Here again, we see that people don’t actually own what they’ve bought, much to their confusion.

Funimation’s support page for digital copies (which, as of this writing, says it hasn’t been updated in four years) notes that Funimation’s idea of forever includes restrictions and links to Funimation’s Terms of Use. Those terms state that Funimation can “without advance notice… immediately suspend or terminate the availability of the Service and/or content (and any elements and features of them), in whole or in part, for any reason.” It also says that the Funimation website, apps, service, and all of its content are owned by Funimation and its partners.

So even if you, understandably, thought you were buying a “forever” digital copy, the wordy truth is that you never really owned it. Yet, it wouldn’t be surprising to hear that someone relying on digital copies to preserve their purchased media didn’t properly understand (or read) those terms before discarding their physical copies.

Thanks for the money, suckers! Hope you enjoyed the years-long forever!

Filed Under: digital content, digital library, license, ownership
Companies: crunchyroll, funimation, sony

Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License

from the look-who's-(capable-of)-talking-(without-fear-of-being-fined) dept

Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in — something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not they’ve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.

In Oregon, a sequence of events involving an “unlicensed” engineer who had things to say about traffic light timing resulted in the state licensing board apologizing to Mats Jarlstrom for (expertly) saying things the government didn’t want to hear. Jarlstrom’s ended up with a complete win, with his (unlicensed) research on yellow light timing making it clear cities were putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.

A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineer’s license.

Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal court decision [PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (via Volokh Conspiracy)

Here’s Nutt’s background:

Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.

Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.

At that point, the government had had enough of Nutt and his expert interloping. The government’s lawyers said allowing Nutt to testify in this case would “constitute the unauthorized practice of engineering.” It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an “engineer.”

The Board sent an email, explaining that an unlicensed individual cannot publicly use the term “engineer” in their descriptive title or offer testimony likely to be perceived by the public as “engineering advice.” The Board also provided a position statement–the focus of Nutt’s claim–warning that “testimony impacting the public,” including “expert witness testimony on engineering … matters in the courtroom … or during depositions” and testimony based on “engineering education, training or experience,” requires licensing. The statement also indicated that expert reports are also “evidence of the practice of the profession.” The Board stated that it “has proceeded against unlicensed individuals … for the unlicensed practice of engineering.”

Nutt testified anyway. The irritated board responded with some “per our previous email” saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later — following an “investigation” by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.

The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.

The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didn’t do the things you did while that litigation was still a going concern. (Emphasis in the original.)

At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Board has tried to prohibit Nutt’s speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not “make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.

As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.

As explained above, this concession does not render the parties’ dispute moot. It does,however, make clear that the Board does not contest Nutt’s core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties’ positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.

The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers they’re not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it can’t do is pursue criminal proceedings against engineers for speaking.

At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nation’s profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.

That’s pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.

Filed Under: 1st amendment, engineering license, expert witness, license, north carolina, wayne nutt

WotC Makes Major Changes To D&D OGL License, Sends Community Into A Frenzy

from the d-and-don't dept

If you go back and review Techdirt stories about Dungeons & Dragons, the beloved tabletop fantasy roleplaying game, you will see that most of them focus on the stupidity of moral panics, in which D&D is often swept up. This post is decidedly different. Wizards of the Coast (WotC) recently announced there would be changes to its Open Gaming License (OGL) licensing agreement for creators making content around D&D’s core ruleset. And we’ll absolutely get into that. But first: a history lesson.

The current Open Gaming License in place for D&D dates back over two decades. The purpose of that license is very clear: let creators in general use D&D’s core rules and lore to create new content, but disallow the use of certain copyrighted and/or trademarked content. Why would WotC have opened the game up like that? For the most obvious of reasons: because it was profitable to do so.

In a 2002 interview, then-WotC VP and OGL architect Ryan Dancey said the OGL was “essentially exposing the standard D&D mechanics, classes, races, spells, and monsters to the Open Gaming community. Anyone could use that material to develop a product using that information essentially without restrictions, including the lack of a royalty or a fee paid to Wizards of the Coast.”

The idea, Dancey said at the time, was directly inspired by Richard Stallman’s GNU General Public License. And this wasn’t just altruism on WotC’s part; Dancey said the license would encourage the kind of network externalities that would make the D&D rules system more popular, thus increasing sales of the game’s core rulebook and allowing others to profit off of content based on that system.

Dancey might as well have been a Techdirt reader from back in the day, but this sounds of that logic. Open things up with a generous license, get people to create their own content, and it will all lead to more purchases of the core content that WotC sells in the first place. It was simply good business, in other words. This license continues to be in use all the way up to present.

But as I mentioned, that’s about to change. WotC announced a couple of months ago that the OGL would be updated to version 1.1 and that the changes would reflect a desire to not “subsidize” large corporations that were releasing commercial content utilizing D&D core content. That led many to speculate just what the hell would be in OGL 1.1. Thanks to a leaked draft of the new licensing agreement, the public got its first look at OGL 1.1 a week or so ago. The top-line changes are certainly different, though many in the D&D community looked at these specifics with only mild irritation.

The leaked license document sets up a 25 percent royalty for any revenues a company makes beyond $750,000 in a single year. That new royalty reflects WotC’s position that the original OGL was “always intended to allow the community to help grow D&D and expand it creatively” and “wasn’t intended to subsidize major competitors,” according to the leaked document.

That lines up with WotC’s December statement, which says the license update is partly intended to prevent “large businesses [from] exploit[ing] our intellectual property.” And while the royalty in the leaked license only applies to companies with relatively large revenues, the new OGL reportedly lets WotC “modify or terminate this agreement for any reason whatsoever, provided we give thirty (30) days’ notice.”

The number of folks hitting that top tier number in the 10s of people, so we’re not talking about a ton of creators. And, while many have noted that the 25% royalty is on gross revenue rather than profit, you should also note that this is a progressive system, so the royalties only begin to be applied once you’ve made your first dollar over 750,000inasingleyear.MuchoftheirritationinsteadcenteredontherequirementtosharerevenuedatawithWotCifacreatormakesmorethan750,000 in a single year. Much of the irritation instead centered on the requirement to share revenue data with WotC if a creator makes more than 750,000inasingleyear.MuchoftheirritationinsteadcenteredontherequirementtosharerevenuedatawithWotCifacreatormakesmorethan50k in a year in revenue.

Are these changes going to massively effect the wider community? Not these ones, no. I’d argue they’re still counterproductive, however. After all, in the last two decades, D&D has seen a massive uptick in popularity and gameplay, much of it corresponding to creator content, such as Critical Role and the like.

But those aren’t the only and, arguably, most important changes. The new OGL also purports to replace and nullify the original OGL.

Rights and royalties aside, the most controversial part of the new OGL version 1.1 could be its potential effect on the original, decades-old OGL. The new version reportedly calls itself “an update to the previously available OGL 1.0(a), which is no longer an authorized license agreement [emphasis added].”

That wording came as a surprise to many in the community because the original OGL granted “a perpetual, worldwide, royalty-free, nonexclusive license” to the Open Game Content it described. But while that license was explicitly perpetual, the EFF points out that it was not explicitly irrevocable, meaning WotC retained the legal right to cancel the original agreement at any time, as it seems to be attempting with this updated version.

That just plain sucks. A metric ton of content has been created under the old OGL which was pitched as a perpetual license. To have that license suddenly nullified is a huge betrayal. And, frankly, additional language in the original OGL is likely to create some significant legal headaches for WotC if it wants to enforce its new restrictions in court.

For instance, there is a clause in OGL 1.0a that reads:

Even if Wizards made a change [to the license] you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there’s no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

But the new OGL, which creators have yet to agree to, says the opposite. It says that the old OGL is nullified and no longer an option for creators. The previously quoted Dancey actually helped create the old OGL. Asked for comment on what that clause means, well…

Yeah, my public opinion is that Hasbro [WotC’s parent company] does not have the power to deauthorize a version of the OGL. If that had been a power that we wanted to reserve for Hasbro, we would have enumerated it in the license. I am on record numerous places in email and blogs and interviews saying that the license could never be revoked.

The result? Well, there are about 40k signees of an open letter to WotC stating that they will refuse to sign up under the new OGL, that the old one is still in effect per the terms within it, and that the community insists the old OGL be an option for new content moving forward.

“From what we’ve seen, OGL 1.1 is not an open license,” the group wrote. “It is a restricted license. WotC can change it at any time to create even more restrictive terms. They can remove anyone’s right to use it for any reason. It is a joke. It is a betrayal.”

This is an amazing example of a company shooting itself in the foot with the worst imaginable timing. D&D likely has never been more popular, or played/watched by more people, than it is right now. Purely because WotC decided it wanted more control, and money, from the creative community its open policies helped create, well, now that community is up in arms, angry at what it sees as a massive betrayal.

Which will lead to two things. First, a chilling effect on creators afraid to create for D&D now. Second, a community with a sizable and very loud megaphone that is very, very angry at the moment when WotC should be riding the crest of the popularity wave it helped foster.

A failed charisma check, in other words.

Filed Under: copyright, license, ogl, ogl 1.1, open gaming license, open licensing
Companies: hasbro, wizards of the coast

Nintendo Shuts Down ‘Smash World Tour’ Over Licensing At The Last Possible Second

from the nintendon't dept

It will come as no surprise to any regular reader here when I say that Nintendo is roughly the most annoyingly draconian protector of IP in the video game space. At this point, Techdirt posts discussing Nintendo’s copyright and trademark antics are legion. Notable among those posts for the purposes of this discussion are several online gaming tournaments that Nintendo has allowed to exist, often without a license, but which Nintendo has still been willing to shut down over the use of 3rd party tools that make it possible to stream older games on current hardware and over the internet better. Those shutdowns over the use of tools that have nothing to do with copyright infringement might seem ridiculous to you, but then you simply don’t know just how iron-fisted Nintendo likes to be when it comes to controlling anything that has to do with their products.

But what Nintendo just did to the Smash World Tour is a whole different animal. SWT has always operated as an unlicensed tournament with hundreds of events, at which Nintendo has averted its legal gaze. In 2021, Nintendo announced that a company called Panda Global had become Nintendo’s officially licensed partner for Super Smash Bros. tournaments. SWT reached out to Nintendo asking if that meant it had to shut down, but were told last year that the Panda Global deal was not exclusive. With that, SWT attempted to apply for its own license to continue its tournament.

While licensing discussions continued in early 2022, organizers say the 2022 Smash World Tour was launched without an official license, partly because “we did not have the full scope of our proposal sorted with Nintendo in advance.” But the organizers say they did seek a license for the December championships, submitting an application in April.

Meanwhile, Smash Tour organizers say the CEO of Panda Global started trying to undermine their tour by “tell[ing] organizers we were definitely not coming back in 2022, and if we did, we’d get shut down shortly after announcement.” After Panda Global initially demanded exclusivity for any individual events associated with them, many tournaments operated jointly as part of both the licensed Panda Cup and the unlicensed Smash World Tour in 2022 (Panda Global has not responded to a request for comment from Ars Technica).

During most of this year, while all of that was happening, SWT was still attempting to get licensed through Nintendo, but the talks hit a wall when Nintendo basically stopped responding. Finally, the two sides got back together this past Fall and continued talks about getting licensed.

And then, well…

Then, last Wednesday, they said Nintendo told them in no uncertain terms that they would not be getting a commercial license and that the days of Nintendo tolerating their operation without one “were now over.”

In a statement provided to Kotaku late Tuesday, Nintendo said that despite “continuous conversations” and “deep consideration,” the company was “unable to come to an agreement with SWT for a full circuit in 2023.” That said, Nintendo contends that it “did not request any changes to or cancelation of remaining events in 2022, including the 2022 Championship event, considering the negative impact on the players who were already planning to participate.”

That 2022 championship was slated to take place in December. SWT has since canceled it. As part of the communications around the cancellation, SWT organizers are also calling bullshit on Nintendo’s claims that no requests to shut down the 2022 championship event were even discussed.

In a follow-up statement, though, Smash World Tour cites a written statement from Nintendo saying that tournaments are “expected to secure such a license well in advance of any public announcement” and that the company “will not be able to grant a license for the Smash World Tour Championship 2022 or any Smash World Tour activity in 2023.”

So, where does that leave us? Well, to be clear, Nintendo can keep unlicensed tournaments from happening if it so chooses. It can also make decisions on when to let unlicensed tournaments slide as capriciously as it likes, from year to year.

But as always seems to be the case with this company, Nintendo also went about it in roughly as haphazardly as possible, and with a completely blind eye towards the timeline and the people it was impacting with its decisions. It could have licensed 2022 for free or for very cheaply, just to get this one tourney off as a farewell. It could have communicated better with SWT and gotten further down the licensing route than it did. It could have offered clear guidance to any tourney organizers on what it takes to get licensed.

But Nintendo didn’t do any of that. Instead, they simply told SWT out of the blue to shut it all down and then said publicly that it didn’t really do that. And that’s about as Nintendo as it gets.

Filed Under: competition, fair use, license, smash world tour, super smash bros., tournaments, trademark
Companies: nintendo

Apple Sues NSO Group For Targeting IPhone Users With Powerful Exploits

from the [applauds-super-cautiously] dept

NSO Group’s year from hell continues. Apple is now suing the Israeli exploit hawker for hacking its customers’ iPhones — customers who include not only the supposed terrorists and dangerous criminals NSO claims its customers target with malware, but also journalists, activists, lawyers, ex-wives, religious leaders, US citizens, and government officials NSO claims its customers don’t target.

Apple isn’t the first major tech company to sue NSO over its malware. Facebook and WhatsApp sued NSO in 2019, alleging that the use of WhatsApp to deploy powerful exploits violated WhatsApp’s terms of use. While this is almost certainly true (deploying malware via WhatsApp is definitely not allowed), WhatsApp appears to want a ruling that would expand the definition of “unauthorized access” under the CFAA (Computer Fraud and Abuse Act) that’s already been stretched several times by DOJ prosecutors.

On one hand, it would be undeniably enjoyable see NSO get slapped with an order denying it access to WhatsApp and its users, on the other, it wouldn’t be helpful at all to turn research (security and otherwise) that violates sites’ terms of use into a federal crime.

Unfortunately, Apple’s lawsuit [PDF] appears to be asking for something along the same lines. It also stretches the definition of legal standing, alleging it has the right to sue on the behalf of its users because reacting to the deployment of NSO malware has caused it to spend a bit of its billions closing security holes.

That being said, Apple’s legal reps sure know how to open a lawsuit. Here’s the first paragraph of the suit’s introduction:

Defendants are notorious hackers—amoral 21st century mercenaries who have created highly sophisticated cyber-surveillance machinery that invites routine and flagrant abuse. They design, develop, sell, deliver, deploy, operate, and maintain offensive and destructive malware and spyware products and services that have been used to target, attack, and harm Apple users, Apple products, and Apple. For their own commercial gain, they enable their customers to abuse those products and services to target individuals including government officials, journalists, businesspeople, activists, academics, and even U.S. citizens.

Welp. That’s not going to help NSO’s presumably permanently damaged SEO. The next paragraph builds on NSO’s “amoral mercenary” reputation by pointing to the US Commerce Department’s recent blacklisting of the company — an act that almost never targets companies operating in countries the US considers to be close allies.

It follows these accusations with NSO’s own admissions of malfeasance.

NSO admits that its destructive products have led to violations of “fundamental human rights,” which have been widely recognized and condemned by human rights groups and governments, including the U.S. Government. To ensure that their products can be used by others to maximum effect, NSO reportedly provides ongoing technical support and other services to their clients as they deploy NSO’s spyware against Apple’s products and users, including journalists, human rights activists, dissidents, public officials, and others. Most recently, the Guardian reported that six Palestinian human rights defenders—one of whom is also a U.S. citizen—were attacked and surveilled using NSO’s spyware. Although NSO claims that its spyware “cannot be used to conduct cybersurveillance within the United States,” U.S. citizens have been surveilled by NSO’s spyware on mobile devices that can and do cross international borders.

Then it starts talking about the damage Apple itself has suffered as a result of NSO customers targeting iPhone users.

Defendants force Apple to engage in a continual arms race: Even as Apple develops solutions and enhances the security of its devices, Defendants are constantly updating their malware and exploits to overcome Apple’s own security upgrades.

These constant recovery and prevention efforts require significant resources and impose huge costs on Apple. Defendants’ unlawful malware activities have caused and continue to cause Apple significant damages in excess of $75,000 and in an amount to be proven at trial.

That’s the amount of damages needed to keep a lawsuit in federal court. But further into the lawsuit, Apple specifically cites the law amended by the CFAA and quotes a much lower price for actual monetary damages.

Defendants’ actions caused Apple to incur a loss as defined by 18 U.S.C. § 1030(e)(11), in an amount in excess of $5,000 during a one-year period, including the expenditure of resources to investigate and remediate Defendants’ conduct.

That puts the CFAA in play as Apple advocates on behalf of its users and its own defensive efforts. But standing is a tricky thing, as is attempting to hold NSO directly responsible for the activities of its customers.

Apple attempts to show standing by claiming end users are only borrowing the software it creates, so iPhone users targeted by NSO malware are, in effect, having their rented homes damaged by home invaders. Apple is the landlord, so to speak, so it believes it is due direct compensation for something that happened to its tenants. This is a dangerous argument to make, considering its the same one the DOJ deployed when it was trying to force Apple to break encryption on the San Bernardino shooter’s iPhone.

Defendants violated and attempted to violate 18 U.S.C. § 1030(a)(2) because they intentionally accessed and attempted to access the iOS operating system on Apple’s users’ devices without authorization and, on information and belief, obtained information from Apple’s users’ devices.

Defendants violated 18 U.S.C. § 1030(a)(4) because they knowingly and with the intent to defraud accessed the operating system on Apple’s users’ devices without authorization using information from Apple’s servers and then installed highly invasive spyware on those Apple users’ devices, and by means of such conduct furthered the intended fraud and obtained something of value.

[…]

Apple retains ownership of its operating-system software pursuant to its Software License Agreements.

We’ll see whose stretching works better. Apple wants to be able to represent users who’ve been targeted, citing its licensing and its own (apparently minimal) expenses related to patching security holes. NSO, on the other hand, will want out of this suit and has deployed some creative arguments of its own defending itself against WhatsApp’s litigation.

It remains to be seen whether its argument that it can’t be sued directly for the actions of its customers will convince the court WhatsApp’s lawsuit should be dismissed. But it has already seen another of its defenses shot down at the appellate level, which refused to extend sovereign immunity to the private company that sold exploits to government agencies. The Ninth Circuit refused to buy the argument that selling stuff to government agencies makes one an extension of that government agency for immunity purposes.

We’ll see what the court makes of this one. We already know at least one of NSO’s defenses is foreclosed by precedent. But we shouldn’t necessarily cheer Apple on just because the target of its suit is reprehensible. A ruling in favor of Apple’s CFAA allegations could prove disastrous for researchers and others who bypass terms of service restrictions for far less malignant reasons.

On the bright side, Apple is handing out a lot of money to researchers who’ve exposed plenty of malfeasance by NSO Group’s customers.

Apple commends groups like the Citizen Lab and Amnesty Tech for their groundbreaking work to identify cybersurveillance abuses and help protect victims. To further strengthen efforts like these, Apple will be contributing $10 million, as well as any damages from the lawsuit, to organizations pursuing cybersurveillance research and advocacy.

Apple will also support the accomplished researchers at the Citizen Lab with pro-bono technical, threat intelligence, and engineering assistance to aid their independent research mission, and where appropriate, will offer the same assistance to other organizations doing critical work in this space.

On top of this, Apple will continue notifying users it believes have been targeted by NSO malware, which is only going to result in more negative press for the malware purveyor. If NSO wanted to be perceived as a skilled warrior in the fight against international crime and terrorism, it blew that chance when it decided to sell to notorious human rights abusers and engage in zero oversight of the use of its products. It earned the reputation it now has and will carry with it forever, no matter how this lawsuit plays out.

Filed Under: cfaa, exploits, iphones, license, malware, ownership, research, spyware
Companies: apple, nso group

from the it-shouldn't dept

One reason why copyright has become so important in the digital age is that it applies to the software that many of us use routinely on our smartphones, tablets and computers. In order to run those programs, you must have a license of some kind (unless the software is in the public domain, which rarely applies to modern code). The need for a license is why we must agree to terms and conditions when we install new software. On Twitter, Alvar C.H. Freude noticed something interesting in the software licence agreement for Capture One: “world-class tools for editing, organizing and working with photos” according to the Danish company that makes it (found via Wolfie Christl). The license begins by warning:

if you do not agree to the terms of this license, you may not install or use the software but should promptly return the software to the place where you obtained it for a refund.

That’s normal enough, and merely reflects the power of copyright holders to impose “take it or leave it” conditions on users. Less common is the following:

Capture One or a third-party designated by Capture One in its sole discretion has the right to verify your compliance with this License at any time upon request including without limitation to request information regarding your installation and/or use of the Software and/or to perform on-site investigations of your installation and use of the Software.

If you use Capture One, you must provide “without limitation access to your premises, IT systems on which the Software is installed”, and “Capture One or an Auditor may decide in their sole discretion to apply software search tools in accordance with audits.”

That is, thanks to copyright, a company is perfectly able to demand the right to access a user’s premises, the computer systems they use, and to run search tools on that system as part of an audit. Although this applies to business premises, there’s no reason a software license could not demand the same right to access somebody’s home. In fact, there are really no limits on what may be required. You’re not obliged to agree to such terms, but most people do, often without even checking the details.

The fact that such requirements are possible shows how far copyright has strayed from the claimed purpose of protecting creators and promoting creativity. Copyright has mutated into a monster because it was never designed to regulate activities, as it does with software, just static objects like books and drawings.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Originally published on the Walled Culture blog.

Filed Under: contract, copyright, license, searches
Companies: capture one

Goldman Sachs Created A Font, But You Are Forbidden By Its License To Critique Goldman Sachs Using It

from the comically-sans dept

Even if you find financial news incredibly boring, you will be familiar with investment firm Goldman Sachs. The famed investment bank has a list of purported controversies that rivals some small nations, which will become important in a bit. First, let’s focus on this bit of hot news: Goldman Sachs developed its own font!

Goldman Sachs has released its own eponymous font, Goldman Sans, a contemporary sans-serif that garnishes merciless formality with a charming typographic “wink” here and there.

If you want to see what the font looks like, you can see it here. It’s… certainly a font? To be honest, it looks clean and fine, but not especially unique. Unlike, say, the license it issues for the use of the font, which it is also giving away for free. Because, in addition to that license stating that Goldman Sachs can rescind the license at its whim — turning anything created using it into a potential retroactive legal liability — the license also states that you cannot use Goldman Sans to criticize Goldman Sachs, which is Goldman stupid.

(C)(2)(d) The User may not use the Licensed Font Software to disparage or suggest any affiliation with or endorsement by Goldman Sachs.

(E)(2) Further, Goldman Sachs may terminate this License, without notice to the User, for any reason or no reason at all and at any time, completely at Goldman Sachs’s sole discretion.

For a company that has so many controversies listed on its Wikipedia page, it sure is thin-skinned. And given that thin-skinnedness and the fact that the license allows the company to basically make any content created with it infringement at its whim… why in the absolute hell would anyone ever create anything with this font? Like, at all?

Other than the myriad of comments in the source article and elsewhere in which folks immediately started using the font to criticize Goldman Sachs, I mean.

Filed Under: fonts, goldman sans, license, streisand effect
Companies: goldman sachs

Softbank-Owned Patent Troll Now Promises To Grant Royalty-Free License For Covid-19 Tests; Details Lacking

from the let's-see-the-details dept

Yesterday I wrote up a fairly insane story about how a Softbank-owned patent troll, Fortress Investment Group, through a shell company subsidiary, Labrador Diagnostics (which, despite its name, does not seem to do any diagnostics), using patents that it had bought up from the sham medical testing company Theranos during its fire sale, had sued BioFire Diagnostics/BioMerieux, one of the few companies making a Covid-19 diagnostics test, claiming patent infringement. The patent infringement claims were on all of its diagnostics created using BioFire’s FilmArray 2.0, FilmArray EZ, and FilmArray Torch devices — and the company’s Covid-19 tests were based on that technology. Even worse, the company asked the court to issue an injunction, blocking BioFire from using the tests. As we pointed out, this was not just tone deaf, but destructive and dangerous.

This morning, hours after our article went viral, Labrador Diagnostics issued a press release claiming that once it became aware that BioFire was working on Covid-19 tests, it had offered the company a royalty-free license on those tests (and only those tests):

-Labrador Diagnostics LLC (?Labrador?) today announced that it will offer to grant royalty-free licenses to third parties to use its patented diagnostics technology for use in tests directed to COVID-19. Labrador fully supports efforts to assess and ultimately end this pandemic and hopes that more tests will be created, disseminated, and used to quickly and effectively protect our communities through its offer of a royalty-free license during the current crisis.

On March 9, 2020, Labrador, an entity owned by investment funds managed by Fortress Investment Group LLC, filed a patent infringement lawsuit in the District of Delaware to protect its intellectual property. Labrador wants to make clear that the lawsuit was not directed to testing for COVID-19. The lawsuit focuses on activities over the past six years that are not in any way related to COVID-19 testing.

Two days after the lawsuit was filed on March 11, 2020, the defendants issued a press release announcing that they were developing tests for COVID-19. Labrador had no prior knowledge of these activities by the defendants. When Labrador learned of this, it promptly wrote to the defendants offering to grant them a royalty-free license for such tests.

There are still many open questions regarding all of this. It is unclear when Labrador actually sent this letter or what it actually says in the details. It’s notable that it says that it “will offer to grant royalty-free licenses, rather than just flat out waiving any rights it might hold for such tests. The latter would suggest good faith. The former makes you wonder if there are conditions associated with the “offer” (such as needing to license the patents for other uses, or a recognition of the patents as valid or some such). Labrador and its lawyers at Irell & Manella could clear up this confusion by releasing the letter — including the time stamp when it was actually sent.

Even this bit of last minute ass covering doesn’t change the overall sketchiness of the original lawsuit. Again, we’re talking about questionable patents from Theranos, a firm that was shown to be a sham, with technology that never worked. The patents themselves seem excessively, perhaps ridiculously, broad. Look over the claims in patent 8,283,155 and explain to me how that adds anything new or novel to diagnostic testing machines. Here’s the 1st claim:

1. A two-way communication system for detecting an analyte in a bodily fluid from a subject, comprising:

> a) a reader assembly comprising a programmable processor that is operably linked to a communication assembly; > b) an external device configured to transmit a protocol to the communication assembly; > c) a test device configured to be inserted into the reader assembly, said test device comprising: > >> i) a sample collection unit configured for collecting a sample of bodily fluid suspected to contain an analyte; >> ii) an assay assembly containing reactants that react with said sample of bodily fluid based on the protocol transmitted from said external device to yield a detectable signal indicative of the presence and/or concentration of said analyte; and >> iii) an identifier that is configured to provide the identity of said test device and is also configured to trigger the transmission of said protocol that is selected based on said identifier; > > wherein the programmable processor of the reader assembly is configured to receive said protocol from said external device, wherein said protocol in turn effects (1) a reaction in said assay assembly for generating said signal, and (2) selection of a detection method for detecting said signal, and wherein said reader further comprises a detection assembly for detecting said signal which is transmitted via said communication assembly to said external device.

It basically seems to describe a mobile testing unit that can collect data from a sample, and send what it finds over a network to a computer system to analyze. I’m certainly not an expert in the field, but it seems to me that if you were to ask basically any one with any knowledge of how these things work “how would you build a mobile medical diagnostics tool” they’d more or less describe exactly this system. This is not some big breakthrough. This seems to be a broad an obvious idea that never should have received a patent in the first place.

So, sure, it’s great that after Irell & Manella started getting lots of shit for this kind of gross pandemic profiteering, it suddenly got the shell company to issue a press release “offering” (not promising) royalty-free licenses, but that doesn’t clear up what appears to be a fairly gross effort at patent trolling off of a sham company’s questionable patents — and doing so in the midst of a pandemic. While the company claims it didn’t now that BioFire was working on a Covid-19 test, that’s laughable. Pretty much everyone in the space seemed to expect BioFire to be among the diagnostics firms creating a test. Indeed, even the Wall Street Journal wrote about BioFire working on this a full week before the lawsuit was filed. On top of that, this lawsuit was filed when it was already blatantly clear that we were in the midst of a pandemic, where BioFire’s diagnostics would be useful.

So, yes, it’s great that after the terribleness of this decision became clear, the company made it public that it wouldn’t seek to stop Covid-19 testing, but that doesn’t excuse all of the other awful behavior at play here — and, again, the company still has not revealed the details and conditions of its “offer.”

Filed Under: covid-19, diagnostics, license, patent troll, patents, testing
Companies: biofire, biomerieux, fortress investment group, irell & manella, labrador diagnostics, softbank