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#1 Dark_Oppressor   Members   -  Reputation: 155

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Posted 20 December 2011 - 06:10 AM

So, I'm about to sell a game. I'm selling it, not licensing it, so there is no EULA or anything. However, I still want a disclaimer of warranty and limitation of liability. Is it cool to steal that kind of thing from other software licenses? Are things like the MIT License and the GPL copyrighted themselves? I can certainly write up my own, but if I use an existing one I can be confident it is worded in the proper legalese, ya know?

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#2 Ashaman73   Crossbones+   -  Reputation: 7002

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Posted 20 December 2011 - 06:42 AM

So, I'm about to sell a game. I'm selling it, not licensing it, so there is no EULA or anything. However, I still want a disclaimer of warranty and limitation of liability.

I would sugguest to make a license, when you are selling it. Without a license, even holding the copyright, it could be concluded, that you gave it away without any restrictions/rights. Someone, buying your product, could resell it, because you didn't forbid that. This could really get messy (depends in which country you and/or your customer lives).

Is it cool to steal that kind of thing from other software licenses?

No, uncool. A software license is a document which is although protected by copyright law.


I can certainly write up my own, but if I use an existing one I can be confident it is worded in the proper legalese, ya know?

Many countries protect a customer by law, which is a good thing, but this makes it somewhat difficult for you. There're lawyers specialized in finding weak spots in whatever you make (licenses, eula, disclaimer etc.), which could get expensive when you do it wrong.

In harsh words: Either pay a lawyer to work out a proper license now, or pay him later to settle down any legal issues.:P

#3 samoth   Crossbones+   -  Reputation: 4661

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Posted 20 December 2011 - 06:44 AM

Licenses (and other documents, even cease letters!) are certainly copyrighted, and you cannot just steal from them. I know a case where someone published a stupid and in shi opinion undeserved cease letter angrily on his website and got another one for infringing the legal eagle's copyright on the first.

However, stealing and e.g. using the GPL are two entirely different things. If you wish to put your program under the GPL, just do so. This is perfectly legal.

#4 rip-off   Moderators   -  Reputation: 8071

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Posted 20 December 2011 - 08:17 AM

Don't write your own license, unless you are a lawyer.

Licences themselves fall under copywrite (unless you can find evidence to the contrary, e.g. that they have been donated to the public domain). For example, the wikipedia has a short section with regards to the copyright on the GPL:

The text of the GPL is itself copyrighted, and the copyright is held by the Free Software Foundation. However, the FSF does not hold the copyright for a work released under the GPL, unless an author explicitly assigns copyrights to the FSF (which seldom happens except for programs that are part of the GNU project). Only the individual copyright holders have the authority to sue when a license violation takes place.

The FSF permits people to create new licenses based on the GPL, as long as the derived licenses do not use the GPL preamble without permission. This is discouraged, however, since such a license might be incompatible with the GPL.[39] and causes a perceived license proliferation.
Other licenses created by the GNU project include the GNU Lesser General Public License and the GNU Free Documentation License.

Emphasis added.

#5 frob   Moderators   -  Reputation: 19862

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Posted 20 December 2011 - 04:52 PM

The thing about licenses, EULAs, ToS statements, and other legal agreements is that they are purely fuctional. They are generally not considered creative works as far as copyright law and other IP rights are concerned.

They still have some protections. You cannot claim original ownership or various other rights that are protected by copyright, but as purely functional text you can generally copy it and incorporate the terms into your own agreement. You will absolutely need your lawyer to review it. Your lawyer probably already has a collection of agreements.

Authoring an agreement is something you should leave to lawyers. Seemingly simple phrases have very specific meaning in the law; if your contract says you will use your 'best efforts' to do something that is an extremely high effort standard. Other words like 'may', 'might', 'should', and so on will be interpreted at face value, which is to say, they are entirely optional. Anything that was omited is generally interpreted to be intentionally omitted. If you listed out 7 specific rights to be transferred but omitted one that is frequently mentioned, that omitted value is assumed to be expressly left out.

Omitting just one tiny detail can make the entire contract void or reduce its value to the point of uselessness. Accidently including a tiny extra item can bind you in ways that are unexpected and even fatal to the business. Don't write contracts; tell a lawyer what you want and have the lawyer write the contract.
Check out my personal indie blog at bryanwagstaff.com.

#6 monalaw   Moderators   -  Reputation: 1065

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Posted 21 December 2011 - 05:59 PM

The thing about licenses, EULAs, ToS statements, and other legal agreements is that they are purely fuctional. They are generally not considered creative works as far as copyright law and other IP rights are concerned.

They still have some protections. You cannot claim original ownership or various other rights that are protected by copyright, but as purely functional text you can generally copy it and incorporate the terms into your own agreement. You will absolutely need your lawyer to review it. Your lawyer probably already has a collection of agreements.

Authoring an agreement is something you should leave to lawyers. Seemingly simple phrases have very specific meaning in the law; if your contract says you will use your 'best efforts' to do something that is an extremely high effort standard. Other words like 'may', 'might', 'should', and so on will be interpreted at face value, which is to say, they are entirely optional. Anything that was omited is generally interpreted to be intentionally omitted. If you listed out 7 specific rights to be transferred but omitted one that is frequently mentioned, that omitted value is assumed to be expressly left out.

Omitting just one tiny detail can make the entire contract void or reduce its value to the point of uselessness. Accidently including a tiny extra item can bind you in ways that are unexpected and even fatal to the business. Don't write contracts; tell a lawyer what you want and have the lawyer write the contract.


The argument that because a contract is "functional" it is not protected by copyright law isn't true, and it's actually really troublesome that people think it is. While a lot of "traditional" contract language may not be sufficiently original to warrant protection, contracts that employ different writing styles to make a contract easier to understand are almost certainly worthy of copyright protection (and yes, there's case law to back this up). How a contract is worded, arranged, and the type of language used to bind the parties is actually part of a (sometimes exhausting) creative process unless the drafter is relying entirely on a prior form, and even then that prior form may be protected. Many lawyers, including myself, put time and effort into drafting original contract content and a body of form agreements for the precise reason that we don't want to be sued for copyright infringement by our colleagues. A lot of lawyers spend time developing styles that are more personal/in plain English to make agreements easier to understand. I know a lot of lawyers who take those rights and their efforts very seriously. We may also copyright our materials and make a statement to that effect in our engagement letters.

Some licenses, like GPL, are free for use under a creative commons license. However, those licenses serve a very specific function that you may be loathe to adhere to unless you're selling an open source product. You may also find some other contracts out there that under a creative commons license, but don't expect every contract on the internet to be free for your use.

In short, it's best to contact a lawyer to prepare an EULA for you.


~Mona Ibrahim, Esq.
J.D., LL.M.
Trademark & Entertainment Attorney


MAI Entertainment Law

#7 frob   Moderators   -  Reputation: 19862

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Posted 22 December 2011 - 02:40 AM


The thing about licenses, EULAs, ToS statements, and other legal agreements is that they are purely fuctional. They are generally not considered creative works as far as copyright law and other IP rights are concerned.

They still have some protections. You cannot claim original ownership or various other rights that are protected by copyright, but as purely functional text you can generally copy it and incorporate the terms into your own agreement.


The argument that because a contract is "functional" it is not protected by copyright law isn't true, and it's actually really troublesome that people think it is. While a lot of "traditional" contract language may not be sufficiently original to warrant protection, contracts that employ different writing styles to make a contract easier to understand are almost certainly worthy of copyright protection (and yes, there's case law to back this up). How a contract is worded, arranged, and the type of language used to bind the parties is actually part of a (sometimes exhausting) creative process unless the drafter is relying entirely on a prior form, and even then that prior form may be protected. Many lawyers, including myself, put time and effort into drafting original contract content and a body of form agreements for the precise reason that we don't want to be sued for copyright infringement by our colleagues. A lot of lawyers spend time developing styles that are more personal/in plain English to make agreements easier to understand. I know a lot of lawyers who take those rights and their efforts very seriously. We may also copyright our materials and make a statement to that effect in our engagement letters.

Some licenses, like GPL, are free for use under a creative commons license. However, those licenses serve a very specific function that you may be loathe to adhere to unless you're selling an open source product. You may also find some other contracts out there that under a creative commons license, but don't expect every contract on the internet to be free for your use.

In short, it's best to contact a lawyer to prepare an EULA for you.


Interesting how this appears to be changing.

Is it a recent trend?

It seems that copyright of contracts prior to 1988 would hardly be possible. It really wan't until 1987 with the Salinger case that unpublished works (like contracts) were considered for the protections at all, and it wasn't until the Berne Convention acceptance in 1988 that the copyright statement requirements were relaxed. Is it the pre-'88 contracts that you consider "traditional contract language"?


In trying to figure out how it would apply to other legal documents, I noticed even the USPTO is giving mixed messages. As an example, they state "the text and drawings of a patent are typically not subject to copyright restrictions", followed by a warning about the growing trend of copyright / mask restrictions in patents. This seems odd especially considering the purpose of the patent document itself would be contrarary to copyright protection. There even seems to be new litigation about it; that by itself is a disturbing thing to read about but I don't want to derail the thread much more.


Sorry about the earlier error above! It does indeed seem that not only are recent contracts heavily protected as creative works, but also that they are being actively protected by their authors.


In any event, we can all see how actually drafting such agreements is best left to the experts on the matter.
Check out my personal indie blog at bryanwagstaff.com.

#8 mdwh   Members   -  Reputation: 843

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Posted 22 December 2011 - 09:11 AM


So, I'm about to sell a game. I'm selling it, not licensing it, so there is no EULA or anything. However, I still want a disclaimer of warranty and limitation of liability.

I would sugguest to make a license, when you are selling it. Without a license, even holding the copyright, it could be concluded, that you gave it away without any restrictions/rights. Someone, buying your product, could resell it, because you didn't forbid that. This could really get messy (depends in which country you and/or your customer lives).

Which countries don't respect copyright by default (as with the Berne Convention)?

Putting "copyright so-and-so" can't hurt, indeed, though I don't think a full licence is required for this reason (if all he's going to say is what's already the case under copyright law). I'm not sure if by reselling it you mean selling the one copy their bought, or selling copies - for the former, this is legal in some countries (e.g., First Sale Doctrine - he says he's selling it, not licensing it), for the latter, even if someone thought they could do it, I don't see how the lack of a copyright notice or licence would make a court think it okay.
http://erebusrpg.sourceforge.net/ - Erebus, Open Source RPG for Windows/Linux/Android
http://homepage.ntlworld.com/mark.harman/conquests.html - Conquests, Open Source Civ-like Game for Windows/Linux

#9 Dark_Oppressor   Members   -  Reputation: 155

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Posted 22 December 2011 - 11:37 PM

Which countries don't respect copyright by default (as with the Berne Convention)?

Putting "copyright so-and-so" can't hurt, indeed, though I don't think a full licence is required for this reason (if all he's going to say is what's already the case under copyright law). I'm not sure if by reselling it you mean selling the one copy their bought, or selling copies - for the former, this is legal in some countries (e.g., First Sale Doctrine - he says he's selling it, not licensing it), for the latter, even if someone thought they could do it, I don't see how the lack of a copyright notice or licence would make a court think it okay.


Ya, I have zero objection to the first case there. I specifically want to sell my games, not license them. People who buy my game own it. It would be nice if people didn't all just copy it and never buy it, though. :-)

If I don't want to license my game, but I still want something along the lines of "if your computer blows up I am not responsible," what would that be called? A disclaimer?

I've also got another one related to lawyer stuff: Say you pay a lawyer to write up all your fun documents for you. Then you go on, use them, sell your game, etc. Then, you get sued for something supposedly covered in your privacy policy, for instance. What do you do?

#10 monalaw   Moderators   -  Reputation: 1065

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Posted 24 December 2011 - 02:40 PM


Which countries don't respect copyright by default (as with the Berne Convention)?

Putting "copyright so-and-so" can't hurt, indeed, though I don't think a full licence is required for this reason (if all he's going to say is what's already the case under copyright law). I'm not sure if by reselling it you mean selling the one copy their bought, or selling copies - for the former, this is legal in some countries (e.g., First Sale Doctrine - he says he's selling it, not licensing it), for the latter, even if someone thought they could do it, I don't see how the lack of a copyright notice or licence would make a court think it okay.


Ya, I have zero objection to the first case there. I specifically want to sell my games, not license them. People who buy my game own it. It would be nice if people didn't all just copy it and never buy it, though. :-)

If I don't want to license my game, but I still want something along the lines of "if your computer blows up I am not responsible," what would that be called? A disclaimer?

I've also got another one related to lawyer stuff: Say you pay a lawyer to write up all your fun documents for you. Then you go on, use them, sell your game, etc. Then, you get sued for something supposedly covered in your privacy policy, for instance. What do you do?


I think you need to make an important distinction here-- when people purchase your game, they own that specific "copy", but you retain the underlying rights (your copyrights, trademarks, etc.). So even if they own that copy, the thing you're selling is the physical or digital copy and not your underlying rights. In order to use that copy, the purchaser needs a license to those rights. If you're planning on transferring aaaaaall of those rights, you can only do it once-- once those rights are assigned, they can't be taken back except in specific circumstances (you'll learn about those if you read into recent comic book law). So even if you say "I want to sell the game, not license", it doesn't make sense unless you're planning on assigning your rights to a single purchaser.

As for a disclaimer, software is typically sold "As is" and warranty free, so that kind of language is fairly standard in an EULA. And yes, it's a disclaimer or a "limitation of liability". You'd not only want to exclude any warranties and guarantees, but you'd also want to limit your liability by saying "If it does happen, you've assumed that risk, and we assume no legal or equitable liability in connection to any claims, damages, or actions that arise as a result of your purchase and download." There's usually more language to that, but that's the gist of it.

As for the privacy policy, that depends. Why are you being sued? Bear in mind that under US law privacy policies are rarely mandatory, and almost never in the case of games (some circumstances, like the collection of financial or bank information, may change that). The #1 reason people get in trouble when it comes to a privacy policy is because they didn't follow their own rules. At that point the FTC may get involved. When you consult with your attorney concerning your privacy policy, they'll probably go through an extensive interrogation to determine the specific information you'll collect, how it's stored, and when and how it's destroyed. The main point of a privacy policy is consumer assurance and your own honesty-- if you comply with your own privacy policy, there aren't many circumstances where the hypothetical you mentioned will occur. As for "what happens" in that unlikely event, unless you can show that the attorney failed to exercise reasonable professional care in drafting the document, you're responsible for complying to your own terms, so you'd be legally liable.



~Mona Ibrahim, Esq.
J.D., LL.M.
Trademark & Entertainment Attorney


MAI Entertainment Law

#11 Dark_Oppressor   Members   -  Reputation: 155

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Posted 11 January 2012 - 08:32 PM

I think you need to make an important distinction here-- when people purchase your game, they own that specific "copy", but you retain the underlying rights (your copyrights, trademarks, etc.). So even if they own that copy, the thing you're selling is the physical or digital copy and not your underlying rights. In order to use that copy, the purchaser needs a license to those rights. If you're planning on transferring aaaaaall of those rights, you can only do it once-- once those rights are assigned, they can't be taken back except in specific circumstances (you'll learn about those if you read into recent comic book law). So even if you say "I want to sell the game, not license", it doesn't make sense unless you're planning on assigning your rights to a single purchaser.


I guess I find this a little confusing. Do movies, music, etc. have EULA's? Music is copyrighted, and if I buy a copy of it I own that copy, but not the rights for the song itself. This is accomplished without any EULA, so what is the difference between that and software? Or am I missing something?

By the way, I have contacted a lawyer, and I am going to get a EULA written up, but I'd still like to understand this stuff better. For one thing, I know what I want, but I don't seem to be able to express it very well.

#12 frob   Moderators   -  Reputation: 19862

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Posted 11 January 2012 - 08:59 PM

Under traditional sales law you are NOT selling the rights to the thing, you are selling a copy of the thing.



When you sell a copy of a book, it is just the rights to use the copy for individual use. You don't sell the rights to distribute new copies or the rights to make a sequel, or mass-produce it, or put it on a network library.

When you sell audio tracks, you sell a copy of a recording for individual use. You don't sell the rights to distribute new copies or play it on the radio or post it to youtube.

You sell a copy of sheet music, you sell a copy for individual use. That doesn't transfer the rights to perform your own modification of the music in your own world tour or other performance rights.



It sounds like that is what you want to do. You want to sell a copy of the game; you retain all traditional sale rights. Is that correct?

That is exactly what most EULA try to do. Programming books include disclaimers about how using the code is done at your own risk. Home repair books include disclaimers about how you should not attempt anything beyond your skill and knowledge, and that they disclaim any damage you do to your property even if it was from following an error in the book. Fiction books include disclaimers about how they were not based on any character living or dead. The license agreement with software is really no different; it disclaims you from damage in exactly the same way as the disclaimer in the book.

It is not something evil or bad, and just as necessary as the warnings about not locking yourself into a fridge, or the notice in books not to put it on a media retrieval system.
Check out my personal indie blog at bryanwagstaff.com.

#13 Dark_Oppressor   Members   -  Reputation: 155

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Posted 11 January 2012 - 09:45 PM

Under traditional sales law you are NOT selling the rights to the thing, you are selling a copy of the thing.



When you sell a copy of a book, it is just the rights to use the copy for individual use. You don't sell the rights to distribute new copies or the rights to make a sequel, or mass-produce it, or put it on a network library.

When you sell audio tracks, you sell a copy of a recording for individual use. You don't sell the rights to distribute new copies or play it on the radio or post it to youtube.

You sell a copy of sheet music, you sell a copy for individual use. That doesn't transfer the rights to perform your own modification of the music in your own world tour or other performance rights.



It sounds like that is what you want to do. You want to sell a copy of the game; you retain all traditional sale rights. Is that correct?

That is exactly what most EULA try to do. Programming books include disclaimers about how using the code is done at your own risk. Home repair books include disclaimers about how you should not attempt anything beyond your skill and knowledge, and that they disclaim any damage you do to your property even if it was from following an error in the book. Fiction books include disclaimers about how they were not based on any character living or dead. The license agreement with software is really no different; it disclaims you from damage in exactly the same way as the disclaimer in the book.

It is not something evil or bad, and just as necessary as the warnings about not locking yourself into a fridge, or the notice in books not to put it on a media retrieval system.


Yes, that is exactly what I want to do. Sell a copy of the game, with me retaining traditional sale rights. And offer no warranty, and if their computer blows up, I'm not responsible.

The reason I am specifically asking is that I have read the EULA's of some things I "purchased," only to find that the EULA actually claimed I don't even own my copy of the game, and that I am essentially renting it. It is this that I strongly wish to avoid doing with my own software. Most customers might not care, but for those that do, I'd like to support the idea of property ownership. Does this come up much, or is it just me that is bothered by this trend?

#14 mdwh   Members   -  Reputation: 843

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Posted 12 January 2012 - 09:02 AM

Under traditional sales law you are NOT selling the rights to the thing, you are selling a copy of the thing.

...

That is exactly what most EULA try to do. ...

It is not something evil or bad, and just as necessary as the warnings about not locking yourself into a fridge, or the notice in books not to put it on a media retrieval system.

I agree with frob's post - though I'd note that part of the reason EULAs have a bad name is that some of them aren't just about disclaimers, but insist you "agree" to all sorts of other things (e.g., as Dark_Oppressor says) to be able to use it after you've bought it, which is not something that music, books etc get you to do.

But yes, I agree with the point that it should be perfectly possible to sell something that means someone can use it, without that implying you've given up rights, and I don't see that a licence let alone "agreement" is required, either to allow them to use it, or to prevent one giving up their copyright rights.

(Well, to be sure, some countries like the UK had problems that even copying on your own system was a copyright violation, so theoretically a "licence" is required to copy from CD to disk to RAM, though I believe this has been fixed. Also the same issue applied for ripping mp3s from a CD you bought for personal use, but I don't think anyone ever cared about that in practice - either from the point of preventing people from doing it, or worrying about EULAs in order to allow it.)
http://erebusrpg.sourceforge.net/ - Erebus, Open Source RPG for Windows/Linux/Android
http://homepage.ntlworld.com/mark.harman/conquests.html - Conquests, Open Source Civ-like Game for Windows/Linux




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