Vigormortis said:
Starke said:
I'll grant you, my general use of the term doesn't make sense, but what I was referencing is different. Still, that was my slip up. I'm so used to lumping those two acronyms together for other discussions it slipped my mind.
Kind of a critical thing to keep in mind, as it undermines your argument across the board. The thing to remember is a EULA is still a legally binding contract. Terms of Service are not, though they are often cited in a EULA as grounds to terminate the contract.
Vigormortis said:
Though, the EULA the players agree to is not the same as the licensing agreement and other contracts another developer would agree to in order to use that devs tools and assets. Especially given that the other dev is using said tools and assets for monetary gain. For the end user, Fair Use (somewhat) applies. Though that could be a stretch, admittedly.
No, it really doesn't, and here's why: Fair Use Doctrine is a general law dealing with circumstances under which copyright infringement is in fact legally protected. I hate to phrase it as "infringement," but, that's generally what it is. If you skim ten minutes of a film off a DVD and post it to YouTube, that's infringement, fair use is an affirmative defense, basically, "yes, I did this, but it's okay because X."
As I pointed out a minute ago, a EULA is a contract, which you enter in to when you install the software. There may be circumstances where you could use Fair Use to circumvent signing said contract. IE: If you're a library and stripping out the DRM in the interest of archiving the data, or more dubiously, if you're in school and demonstrating how to unpack software from an archive without using the installer... or writing your own installer for existing archives.
But the fact remains: Fair Use Doctrine deals with copyright law. A EULA is an element of contract law. So far as this discussion is concerned, copyright is completely irrelevant.
Vigormortis said:
"They are moving to have Valve's trademark application stricken under 15 U.S.C. § 1052(d). Which is a tacit claim of ownership" - Except, in this case, their claims aren't that they own the name, but rather that Valve using the name would create brand confusion. I.E. people would see the name "Dota 2" and assume it's a Blizzard product. Basically, that everyone automatically associates DOTA with Blizzard. (which in-and-of itself is BS. though seeing the reaction of some on this topic, maybe not as farfetched as I thought.)
Which is in fact the point of Trademark law. Basically you seem to be conflating two seperate elements of intellectual property law. Trademark protects the integrity of your branding. Copyright protects the integrity of your intellectual property. While these can be the same thing, they're often separate things entirely.
Nearly the entire filing from Blizzard is afirmations over and over that they own the trademarks on DOTA. They refer to this both with themselves, and through the history of DOTA All-Stars.
Now, even if you're correct, that Blizzard shouldn't have obtained the trademark and copyright from the EULA directly (which I'll admit is a bit dodgy (but that's what courts are for)). They did obtain all intellectual property rights from DOTA All-Stars last year when they purchased the site's LLC from the original two devs.
Vigormortis said:
Resonance Gamer put it well. In a vacuum it seems clear cut. But in practice, the terms are vague and until a definite decision is made, it's all, in effect, meaningless.
Honestly, a little bit of basic legal training in this case does clear things up massivly. It may be obtuse to those without experience reading court filings, but for those of us who have done it, it isn't really vague at all.
Vigormortis said:
I have to say, though, this whole thing seems very "SOPA-ish". Maybe not in it's entirety, but this whole debate on what rights the end user has and what say the big companies have in those rights seems very similar.
I'm not seeing that, but again, basic legal training goes a long way.
Vigormortis said:
Whatever the case, I'm done with the whole thing. It's just not worth arguing over anymore. I'll keep my eye on the Dota 2 beta and on Blizzard DOTA. I'll let the respective companies battle out the BS. I'll just wait to see who comes out the 'victor'.
No, it's not. But it is worth looking at and saying, this is pretty clear cut. It's also worth reminding anyone that claims that a "EULA isn't a license agreement" exactly what EULA stands for in the first place.
EDIT:
Vigormortis said:
Apparently it's been argued that Dota 2 isn't actually an acronym for Defense of the Ancients 2. And even though that's likely true, it's still an obvious comparison. It's also an obvious attempt at brand recognition.
Frankly, the whole situation bothers me. I'm not entirely on board with Valve's decision in this, and I'm definitely not on board with Blizzards motives either.
What I'm curious about is; and this'll be a hypothetical situation; let's say Valve drops their attempts at trademarking the name. However, let's say, a month later Blizzard turns around, after winning their case, and tries to trademark the name DOTA. I wonder how many who are lambasting Valve over this, saying the name should remain 'public domain' would then side with Blizzard and say, "Well...they have a right to it. So I say they should own it."
Sadly, I'm inclined to think too many.
Apparently, though, Blizzard already holds a trademark on Defense of the Ancients. That citation of 15 USC 1052(d) in their filing as much as states they already had it trademarked, and the rest of the filing suggests it was filed in 2008. It's a little unclear if they filed for the trademark or DOTA All-Stars LLC did, but as Blizzard bought DOTA All-Stars last year, they would certainly have that trademark now.
Now, as to trademark law in general, it may sound, well, really stupid, but they honestly don't have a choice about pursuing this. The term "The Ancients" (referring to the units in WC3) are trademarked by Blizzard. DOTA refers to this unit. If they chose not to file in this case they would be abandoning that trademark. Meaning anyone who wanted to could then turn around and trademark "The Ancients" in some other context, and then potentially litigate against Blizzard for violating
their trademark. In this case that other company would be Valve.
It's the way Trademark works, it's how we end up with Disney suing a privately owned bookstore for having a "Pooh's Corner" and then after wining the case, granting them the use of the name.
Is it right? Eh, it's certainly stupid, and probably just make-work for Lawyers, but it is the system we have.
Vigormortis said:
Though, I would champion anyone who would stand by their claims and would 'attack' Blizzard with the same zeal. Because if you're gonna call corporate BS on one; in this case; you need to call it on both.
Honestly, I'm calling bullshit on the intellectual property laws as currently written, but that's a different kettle of festering fish.
