Anti-piracy question

[MrAnon]

Hmm....not trying to toss gas on the hot coals here, but isn't that a bit of a stretch to go from a no-cd crack to piracy? A no-cd is a modification to the executable to make the program think that the CD is in the drive. Is it a violation of the EULA? Absolutely. Is it piracy? No, because copies of the game are not being distributed. It's not even a crime because a EULA violation is a civil matter, not a criminal one.

Leaving aside for the moment the methodology, how is a no-cd crack morally different from using a virtual drive? As long as you own a legit, legal copy of the program how are you committing piracy either way? What harm are you doing to the developer, et al, by using any method to avoid having to swap the CD in and out as long as you bought the program righteously? Is there an ethical difference between making a legal backup copy of your game (and playing from the backup instead of the original) and using a no-cd?

Moving to abandonware for a moment.... There IS such an animal. Some copyrights were owned by the company, not a person so that when the company goes under, no one owns the rights. Some programs were not copyrighted. Some programs have had the copyrights expire and not be renewed. Some copyright owners have chosen not to defend their copyright (and copyrights require an affirmative defense to accrue legal protection). Those products qualify as true 'abandonware' and are in the public domain.

Which is not even to say that some "abandonware" sites don't push the limits and I have run across one or two that fly a Jolly Roger over their "abandoned" sign. As one poster said in a discussion on this topic many moons ago: "Nothing is stopping you from dropping a check in the mail to the developer. Assuming you can find him, that is."

 

[auldian]

A no-cd is a modification to the executable to make the program think that the CD is in the drive. Is it a violation of the EULA?

Yes. You give your word not to do it when you legally install the game.

You agree not to:
(a) Commercially exploit the Software;
(b) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software, or any copies of this Software, without the express prior written consent of LICENSOR;
(c) Make copies of the Software or any part thereof, except for back up or archival purposes;
(d) Except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer, computer terminal, or workstation at the same time;
(e) Copy the Software onto a hard drive or other storage device and must run the Software from the included CD-ROM (although the Software may automatically copy a portion of itself onto your hard drive during installation in order to run more efficiently);

I added the "bold" to the text.
As far as "what harm does it do" well *shrug* ... people have always lied, cheated, and stolen when "it won't hurt anybody" but the pervasiveness of it regarding software and other "intellectual property" is pathetic. Ask any crowd of high school or college age people how many games/movies/mp3s they have and how many they've paid for and it'll often shock you.

 

[Turner]

NoCD patches promote piracy simply because it's easy for someone to hand a game disk off to someone else, they install it, give the disc back, and download the NoCD patch for it.

While there are arguements for NoCD cracks (I did buy Civ3 twice, because of a (physically) cracked disc), there are arguements against it.

Ultimately, NoCD cracks have been deemed piracy by the administration. As this is Thunderfall's site, and he pays for it out of his pocket, he gets to say what is and is not acceptable on this forum.

 

[Flak]

NoCD patches promote piracy simply because it's easy for someone to hand a game disk off to someone else, they install it, give the disc back, and download the NoCD patch for it.

Ultimately, NoCD cracks have been deemed piracy by the administration. As this is Thunderfall's site, and he pays for it out of his pocket, he gets to say what is and is not acceptable on this forum.

But Direct2drive sells legally a version of Civ IV that doesn't require a CD (effectively with its own no-cd 'crack' from the Firaxis developers themselves). So does this mean that Firaxis also promotes piracy? That isn't logical. Just because a game is modified to not require a CD, by Firaxis or whoever, doesn't mean they are promoting piracy. What they are promoting is convenience. And if companies want to continue to stay in business against other companies that move forward with modern technology, they'd better all get used to the idea of CD/DVD-less games that can be distributed on the internet. And they'd better get used to it fast.

 

[Turner]

But Direct2drive sells legally a version of Civ IV that doesn't require a CD (effectively with its own no-cd 'crack' from the Firaxis developers themselves). So does this mean that Firaxis also promotes piracy? That isn't logical. Just because a game is modified to not require a CD, by Firaxis or whoever, doesn't mean they are promoting piracy. What they are promoting is convenience. And if companies want to continue to stay in business against other companies that move forward with modern technology, they'd better all get used to the idea of CD/DVD-less games that can be distributed on the internet. And they'd better get used to it fast.

That's different, and you know it's different.

People are downloading Civ4 from Direct2Drive with the intention of buying it. The distro has been designed by Firaxis (or possibly D2D) to not need the CD. Any kind of 'NoCD' patch that's distributed by D2D is with the consent and foreknowledge of Firaxis. This isn't some person modifing the executable to get around paying for it. This is a retailer who is serving a different market.

 

[Samson]

Another difference between the No-CD crack and D2D is that with the No-CD someone has taken the original .exe, made a small change and distributed it. The small change created a "derivative work" that is covered by the original copyright. The act of distributing this is breach of copy right, and AT LEAST a civil offence. If it is done for personal gain I think it is a criminal offence.

 

[Flak]

That's different, and you know it's different.

People are downloading Civ4 from Direct2Drive with the intention of buying it. The distro has been designed by Firaxis (or possibly D2D) to not need the CD. Any kind of 'NoCD' patch that's distributed by D2D is with the consent and foreknowledge of Firaxis. This isn't some person modifing the executable to get around paying for it. This is a retailer who is serving a different market.

Right. So let's say Firaxis decides this whole no-cd thing is silly and releases another patch for Civ IV that, among other things, has a no-cd option, maybe after the first time it loads with a CD. So who is the target market? Those of us who bought the game legally and have to put the CD/DVD in all the time.

Same result. Same market.

Isn't it curious that you don't hear about the Direct2drive version of Civ IV getting passed around the internet illegally? Even Firaxis is starting to get it....

 

[Turner]

If Firaxis decides to release a NoCD patch, that's up to them as the authors and copyright holders. Until and unless that happens, there is no legal use for NoCD patches.

 

[codeaaron]

i don't think anyone denies that not having to put a cd in the drive would be more convenient, especially to people with portable computers, where the cd drive can sap 1/3 or more of your battery life, but the bottom line is that you as a licensed user have agreed by contract not to use one by virtue of accepting the license (and they are enforceable contracts), AND the united states congress has stepped in and said, "we don't want you doing this stuff." by which i mean, they have made it explicitly criminal to distribute them, AND assessed civil liability on the distributors for each instance of the program downloaded. so even if you assume that each download is only worth a penny of damage to firaxis, we're talking huge money in damages from each site that puts these things up.

the existence of D2D (which i'll admit, i wish i had known about before i bought the disc-based version) proves the rule. clearly theres demand out there from people who want the game but dont want to swap cds in and out. so the market provided a solution that is in full compliance with both the EULA and the DMCA. so if you dont want to swap cds, go to D2D. if you don't care, buy the disc version from amazon. easy.

 

[Pantastic]

I find these anti-piracy threads amusing, because in my experience the sentiments expressed by the anti-piracy people contribute greatly to people's complete unconcern with actual piracy. If someone's going to call Fred a pirate for buying a piece of software, then installing it and playing it Fred's own system 'piracy', and Fred is like most people, he doesn't see anything wrong with being a 'pirate' by that definition. If Fred doesn't think there's anything wrong in being a 'pirate', then why should he care about the other stuff someone's calling 'piracy'? Diluting the term pirate to include someone who pays for a game and doesn't redistribute it reduces the impact of the term overall, contributing to people not caring about traditionally-defined piracy (copying and redistributing the software).

I'm interested since someone has said that EULAs have been upheld as binding contracts in court, can you point me to some of the court cases? The last time I researched this there was practically nothing on this type of license. Note that I'm talking about a 'buy the game, then have to click "I agree" to run it licenses, not things like licenses for accessing online services.

 

[Immacolata]

Actually, I believe it is. Part of the EULA is to not modify the executables.

Well, in many countries the EULAs are not binding. Mostly because their demands have no legal basis. And more than often because you don't understand what the EULA says. There are specific legisliation on copyright and software. Do you expect a non-native person to read and comprehend a several pages long document in dense english legalese? I don't. And you cannot expect people to do it.

Where I am from, copy protection circumvention is completely illegal, doesn't matter how you go about it. However there is a loophole: in case the copy protection is preventing you from legally accessing the content, you are allowed to circumvent the problematic bit.

Doesn't change that promoting cracking and no-cd patches is a bad idea and by default illegal in every country that has laws against software piracy. I think that people with those kinds of problems should take it upon themselves to find a solution that doesn't involve everybody else. Which includes not asking for it on the forums.

I for one hopes that Vista would include some sort of DRM that would eliminate the need for cd-checks. But I doubt it. Let us just count our blessings that people still bother developing for pc platform. I'd hate to be playing Civ on a console, so I live with the cd-hassle. But maybe Ill start buying my games off Direct2Drive when they decide to stoop to such low levels as to pander their products for mainland Europeans, too. This title is available for purchase in North America ONLY. This title is available for purchase in United Kingdom ONLY. Bah. Humbug.

I already bought several games over Steam to my great pleasure. Steam is all things considered the most comfortable copy protection I have encountered so far. As with any other system, it has its detractions, but I prefer that to the cd-checking anachronism.

Reminds me of Battlefield 2 from EA Games. It has received 3 expansions, and you can run any version with any of the discs inserted. I like that. But I really don't understand why they put in a cd-check when the game is online. It is provablue useless without a valid cd-key, ie. a bought copy. So in this instance the cd check feels only like harassment and not at all like any justified attempt at protecting your product against piracy.

 

[codeaaron]

fred isn't a pirate if he buys the game and uses it himself. hes encouraging piracy if he uses a nocd. also, hes violating the license, and the DMCA, and he may be violating criminal statutes by doing so. so good luck to fred if he thinks thats ok.

ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)(enforcing a "shrink wrap" license under general contract law principles) is the primary case on point. Congress and the states have also passed the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act to give them effect. the bottom line is that you have no right to play civ -- you must agree to the license terms in order to do so. if you dont like the terms, go find a piece of software with something you can live with.

 

[Immacolata]

Last time I heard of the abominable DMCA, it didn't apply ouside USA. God bless us! Who knows where fred lives

 

[Samson]

fred isn't a pirate if he buys the game and uses it himself. hes encouraging piracy if he uses a nocd. also, hes violating the license, and the DMCA, and he may be violating criminal statutes by doing so. so good luck to fred if he thinks thats ok.

ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)(enforcing a "shrink wrap" license under general contract law principles) is the primary case on point. Congress and the states have also passed the Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act to give them effect. the bottom line is that you have no right to play civ -- you must agree to the license terms in order to do so. if you dont like the terms, go find a piece of software with something you can live with.

I think you will find that shrink wrap licences get laughed out of court in most of the world. How on earth can any judge determine that a licence that you cannot read until you open the packet, but agree to by opening the packet can be reasnoble? I would go on, but it would be merkin bashing.

[EDIT] This does not make No-CD legal. The altered .exe file is an unautherised derivative work that is illegal without you agrreing to any licence.

 

[codeaaron]

extra-territorial reach of statutes is a massively complicated field, and i really dont have time (or probably even the knowledge) to figure this one out. my westlaw subscription is expired anyway. but in general plenty of US laws reach outside of US territory, and DMCA might, too. i wouldnt want to test it. the international copyright treaties for the most part, though, also prohibit piracy (even if theyre unenforced in a lot of places).

shrink-wrap licenses probably dont get lauged out of court most places, adn they certainly dont in the US. you can reject the license by not installing the software. the approach most courst are going to take is that there are plenty of options out there and if you dont like the terms, find new software.

"shrink wrap license" is now a generic term for any software license that takes effect on installation. thats why the software required you to click "yes, i accept" in order to install. even back when it literally meant that you accepted by opening the shrink wrap, you could reject the license by returning the software, either to the manufacturer or the retailer. obviosuly, this is a seriously rare occurrence, so its kind of silly for us to argue about it. thats why there arent a whole lot of reported cases. the truth is that its far easier for a company to go forward under DMCA or other statutes htan it is to litigate the the license contract. this is also why theres basically no enforcement against personal users, and instead any enforcement is against major distributors (the exception is the RIAA suits, but thats another thread).

as to the derivative work stuff, i dont konw a whole lot about it, but ill take your word for it.

 

[Samson]

shrink-wrap licenses probably dont get lauged out of court most places, adn they certainly dont in the US. you can reject the license by not installing the software. the approach most courst are going to take is that there are plenty of options out there and if you dont like the terms, find new software.

"shrink wrap license" is now a generic term for any software license that takes effect on installation. thats why the software required you to click "yes, i accept" in order to install. even back when it literally meant that you accepted by opening the shrink wrap, you could reject the license by returning the software, either to the manufacturer or the retailer.

There is a big difference between "click through" licences and shrink wrap licences, and a litteral view of shrick wrap licences means you cannot reject the licence after you have opened (and so been able to read) the licence. This is what is not accepted. Click through licences are generally considered to be valid.

 

[Turner]

Copyrigth law extends to other countries. We (the US) recognize other country's copyrights, and they recognize ours. But it's a treaty on a Nation to Nation basis. Some of the relationships can be found here.

 

[Elhoim]

The funny thing is that the EULA says that you can make a backup copy... But you can´t use it!

Extracted from the Warlords EULA:

You agree not to:

(a) Commercially exploit the Software;
(b) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software, or any copies of this Software, without the express prior written consent of LICENSOR;
(c) Make copies of the Software or any part thereof, except for back up or archival purposes;

 

[Silvermink]

I don't think the fred example was claiming what fred did was legal, or right. Just that the terms piracy/pirate don't apply. Fred used a nocd patch, he didnt sell or trade his cd. He didnt download the version he's using. Calling him a pirate dimishes the effectiveness of the "pirate" title.

 

[MrAnon]

You agree not to:
(a) Commercially exploit the Software;
(b) Distribute, lease, license, sell, rent or otherwise transfer or assign this Software, or any copies of this Software, without the express prior written consent of LICENSOR;
(c) Make copies of the Software or any part thereof, except for back up or archival purposes;
(d) Except as otherwise specifically provided by the Software or this Agreement, use or install the Software (or permit others to do same) on a network, for on-line use, or on more than one computer, computer terminal, or workstation at the same time;
(e) Copy the Software onto a hard drive or other storage device and must run the Software from the included CD-ROM (although the Software may automatically copy a portion of itself onto your hard drive during installation in order to run more efficiently);

And herein you show (although I misdoubt that was your intent) a major problem with, and reason people ignore, EULAs. You didn't specify which program this came from, so my points are going to be a bit broad.

(a). "Commercially exploit". PLease define "commercially exploit" (rhetorical question). If I run a software store, and sell GameX, I could arguably be commercially exploiting it . If I host a LAN party and charge admission to play BF2, I am by definition "commercially exploiting" the game. If I'm an author, and use WordGreat4 to write my best-selling novel, I meet the definition for exploiting it commercially. Point being, the phrase is ludicrously ambiguous and could be made to apply to almost any situation.

(b). If you read carefully, you'll see that all the mentioned "Thou Shalt not..."s involved compensation or permanant change of ownership. Not a word about lending it. So according to the EULA, I can let you borrow my copy of MS Office, but you can't keep it or pay me for it.

(c). [One of my faves!] The "fair use" clause. The EULA says that the owner (actually, lessee since you don't buy the software you buy a license to use it - the legal grounds for the permanent transfer clause in (b)) may only make backup copies. OK - so I lend it to you (in accordance with (b)) and YOU make a copy. I haven't violated the EULA, YOU have. But the copy is made. And the REALLY remarkable part is when you combine (c) with (e): You are allowed to make a backup copy - you just can't use any kind of storage medium. Ummmm....how's THAT work? By using my legally-guaranteed-and-expressly-permitted right to a backup, I'm violating my EULA because I can't very well make a backup with some form of storage medium, can I?

(d) is the only clause that is really reasonable although specific elements are shaky. "permit others to do the same" - am I now contractually obligated to tackle someone and forcibly remove a CD from their hands if I know it's not "theirs"? How far am I supposed to go to in "not permitting others"? The clause lists where it cannot be run - what about my PDA? Cell phone? What about being at work and using VNC or RDP or other similar technology to play GameX on my home machine - is that on-line in the EULA sense?

(e) This clause is certainly sensible at first glance, but if you think on it a moment, you'll begin to see some issues, primarily with reasonability matters. How can I use my backup if I can't run the software (presumably, the installer is part of the software) from it? Save games usually have some game code with them - are those a violation?

And before anyone accuses me of over-reaching, you need to research because most of these precise questions have been asked in court with varying answers.

As far as "what harm does it do" well *shrug* ... people have always lied, cheated, and stolen when "it won't hurt anybody" but the pervasiveness of it regarding software and other "intellectual property" is pathetic. Ask any crowd of high school or college age people how many games/movies/mp3s they have and how many they've paid for and it'll often shock you.

Here's one of the arguments that really gets my goat on this issue. Note the presumed evil intent right from the get-go - "lied, cheated, and stolen". Not an answer to the question - "what harm is done?" (which wasn't even the question!) The question was "What harm is done to the developer - how have I hurt his income/job or damaged his intellectual property-if I use a NO-CD for the sole purpose of not having to keep putting the CD in the drive? Quantify the hurt! As for the number of people with unpurchased software, I'd not be surprised at all

FULL DISCLOSURE: I teach PC hardware and software at a technical college and lecturing on piracy/ethics is part of my syllabus. Do not assume that arguments presented are my personal belief; some are presented for the purpose of stimulating discussion and debate.