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Real Name John   
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Nickname JohnnyRotten
Email Concealed by request - Send Mail
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Homepage http://
Signed On Mar 17, 2008, 21:55
Total Comments 362 (Amateur)
User ID 46743
 
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News Comments > Borderlands' Firm Street Dates
143. Re: Borderlands Dates Oct 26, 2009, 10:51 JohnnyRotten
 
Banning people for pointing out that a torrent is available for the purpose of illustrating the irony (that pirates are free from all the inconveniences that honest people have to deal with) is lame, not to mention detrimental to their own cause, as it makes for really bad PR.

Good point.
 
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News Comments > Borderlands' Firm Street Dates
130. Re: Oct 25, 2009, 23:43 JohnnyRotten
 
Unconscionable contracts, by law, are completely void.

Der. But what about this situation is unconscionable?

Everything. No matter what point of the license the customer may disagree with, the fact remains that he or she is stuck with a product they cannot return because they had to open the package and initiate the install procedure in order to view the EULA, making it impossible, in most places, to obtain a refund. Period.

This is where I think electronic distribution has an opportunity to change the paradigm by moving the EULA from inside the product to the outside. Having to explicitly accept the EULA before purchase would change the legal landscape of this issue considerably.
 
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News Comments > Borderlands' Firm Street Dates
129. Re: Oct 25, 2009, 23:37 JohnnyRotten
 
No, but it does have something to do with whether there are damages or not.
No, a summary judgment is simply a judgment by the court without a full trial. It could be for against the defendant, with or without damages, etc., in any combination that a full trial would have. The summary judgment, in and of itself, does not prejudice the punitive damages phase of a case.

Damages have nothing to do with deliberate or not.
No, damages are almost always determined by the intent of the defendant. In fact, most (but not all)* civil and criminal law revolves around the concept of intent. That is why on the criminal side, different charges exist for the same result (manslaughter vs. first degree murder), and on the civil side, the punitive damages are awarded or withheld. It’s one of those 101 law concepts.

* There are laws in which intent plays no part. In these cases, you can be prosecuted for violating the statute, regardless of intent. A good example of this is some states have laws about how much cold medicine you can buy over a certain time period. Go over this, regardless of reason, and a warrant will be issued.

And, again, I'd remind you that this isn't all customers but a small handful from a certain date
I have never advanced the theory that all customers purchasing this product would stand to gain by a class action. This is almost always the case in class actions btw.

By the time anything is filed that time would have been long since passed and the gamers "injured" would have long since stopped playing
Again, another 101 law concept is the concept that an injured party may seek remedy at any time within the limits of the statute of limitations for a particular offense. Simply because the offense has passed does not forgive the offense (Gee officer – now that I’m pulled over, I’m no longer speeding, so you can’t give me that ticket).

And they'd have gotten their full money's worth. Nothing was hinged on it.
What if the customer purchased the product from a retailer that had a limited time return policy? Is there harm if that time runs out before the customer can use the product? Harm is in the eye of the beholder here, and I’m sure there are many scenarios’ that could play out before the court system.

Now, if someone had organized some kind of gaming tournament for yesterday and Take 2 sent them the game, yet it couldn't be played, suddenly we'd have damages.
If 2K deliberately mislead the customers for the tournament about the performance of their product? The plaintiff could absolutely bring them to court. Law 101 again. I’ll use your example in my summary to show how this could be construed as harm.

Over six days on a goof that affected maybe a few thousand people?
Oh man, the government is jumping on that one.
Here’s a point we both agree on: it’s highly unlikely any government entity will jump on this today. However, in a hypothetical future action for other alleged misdeeds, the government could dredge this up to show a pattern of behavior. Because when the government jumps, it tends to do so from a large height and uses an 800 pound gorilla to do so. Just ask Microsoft.

Oh man that's so insanely untrue. Courts limit their rulings to the current circumstances fairly regularly. And it happens with EULAs. They limit it to provisions in the specific EULA they're analyzing. They limit it to the specific words.
This is a straw man argument. My argument wasn’t that rulings exist independent of the case or the case material. My argument is that the ruling, as a whole, generally establishes OR reinforces legal precedent for the type of case, and the situation. Because of this rulings do not exist in a vacuum, and almost all of them will cite the precedents used from PREVIOUS rulings to establish the ruling for the case at hand*. Those law clerks assigned to judges aren’t just getting them coffee. They’re hitting the books to help the judge come to his ruling, and support it. If this wasn’t true, we would here the cry “activist judge” (as silly as it is) for every case, as every case would be decided without the foundation of other rulings. I’m also not saying that a judge, or a panel of judges cannot break with precedent. This happens quite a bit as well.

* This is why Lexis-Nexis exists: To help lawyers find other cases with precedents that support their arguments. It would have no value otherwise.

I’m also not aware of any civil cases dealing with applicability, in part, or whole of the EULA in which a judge said or inferred this ruling is for this case and may never be used or cited in any other case. Again, the application of law does not exist in a vacuum.

Just because part of a contract is void doesn't mean the whole thing is.
Not what was said. What I said was “contracts which are void in part, can be declared void ab initio ie.” The word “can” being the operative word here.

Hey, I'm licensed to practice.
In a previous post you made on September 25, 2009 (http://www.bluesnews.com/cgi-bin/board.pl?action=viewthread&boardid=1&threadid=102408&id=542071&view=threads), you stated “I'm not a developer myself. I do work in the industry, though. I do market research. I do competitive analysis. I do growth path definition. I do supply chain and pricing strategy. I've long since given up C++ for modeling. It's my job to know who the consumer is, what the consumer wants, and how to get the consumer what they want while keeping a company in business.”.

It sounds like you are a former software developer who has moved into a software market research position. The description you gave doesn’t mention anything in the legal profession. Did I make an improper assumption that by your statement you meant that you’re licensed to practice law? If so, what state bar association are you with? Would you perhaps have an ABA membership ID? Can I find you on Martindale? Forgive me, but I’ll need to have definitive proof before I accept this statement as fact. Without proof, I’ll just consider your claim as an “argument job*”.

* My term for a job claimed by someone who states that they are a member of a profession that also just happens to make them authoritative on the subject being discussed. I.e., I’m a developer, I’m a market research expert, I’m a lawyer, I’m a spaceman. Also, if you’re not willing to provide evidence supporting your claim, you can skip the hyperbole and just state that I cannot or will not prove my claim. Because, regardless of the amount of hyperbole, that’s how I’ll be translating it.

And the bottom line is arguing that ANY legal action will come from this is moronic because no one was hurt in any meaningful way. No one.
Using your previous example – I bought several hundred copies for a conventions lan party, and sold tickets with stating this as an attraction, but couldn’t use the software. Here’s another: I’m a retailer who was told to sell copies, and now have a damaged reputation due to the non performance of the product.

Is ANY legal action under ANY legal conditions still, in your opinion as someone who is “licensed to practice” law, still “moronic” ? There is no possible standing in any situation?

It’s interesting to see people jumping and down saying that no one has standing to bring a suit without hearing what that standing is, or simply stating that “There. Can. Be. No. Standing. “ I keep picturing Kruschev and his shoe – Wham! Wham! Wham!

Ultimately, I believe this is a theoretical exercise in the difference between “can” and “will”, as it is highly unlikely anyone is going to get so wound up about this as to actually file. Can it happen? Sure, there seems to be scenarios where harm could occur. Will they happen? Will someone sue because of it? I think the chances are about as likely as the Raiders going to the Super Bowl (or even the playoff’s).

This comment was edited on Oct 26, 2009, 15:36.
 
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News Comments > Borderlands' Firm Street Dates
118. Re: Oct 25, 2009, 17:44 JohnnyRotten
 
Btw, it is out now for download thanks to Reloaded. So the DRM sure worked then... ahem

Seriously? I'm always amazed at the almost sci-fi skills of the crackers to do this kind of thing. It's like all those cheesy movies and tv shows where a guy sits down at a workstation and 2 minutes later "I'm in". Except they really can do it.

Crazy.
 
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News Comments > Borderlands' Firm Street Dates
116. Re: Oct 25, 2009, 17:42 JohnnyRotten
 
Alright, what are the damages?
Quick, c'mon, what are the damages?
What, there are none? Alright, most likely summary judgment

A summary judgment has nothing to do with the amount awarded.

As for the damages, those could be considerable if 2k was shown to have deliberately misled their customers about the product they were selling. I’d like to point out that you appear to have missed the words “if” and “knowingly” in the original post. Please note the words “could be” and “known” as laid out in this paragraph. This is the concept of intent, which would be either an aggravating or mitigating fact in our hypothetical lawsuit.

Also, keep in mind that our hypothetical lawsuits could be brought by the private citizens, governments, or both. In this case of the government, consumer protection laws and their penalties can be pretty severe against violators. While I agree with others on this thread that any type of lawsuit are slim possibilities, it could happen, and in the context of aggravating intent, could be financial painful for 2k.

You can't generalize about EULAs. Some US courts are cool with them. Some US courts aren't cool with them. They all have shot some down and upheld some. They've also all avoided precedent by claiming that their rulings are specific to the EULA at hand.

Leaving aside the fact that your first sentence is immediately contracted by your next set of statements (i.e., broad generalizations), I would disagree that “They've also all avoided precedent by claiming that their rulings are specific to the EULA at hand.” I am unaware of any ruling to do with EULA’s in which the judge qualified his judgment with such a statement, or inference of such a concept. In contract cases, it is extremely rare for a judge to do this. Law is not made for individuals, but for society as a whole, and rulings tend to follow this fundamental concept.

But you'd better believe just about any EULA can be upheld in part so long as its reasonable. Just about any EULA can be shot down in part if it is not reasonable.
Contracts which are void in part, can be declared void ab initio ie. Which, if you are involved in the “law” (as you put it), you should know, as has been contract law 101 for well over a hundred years.

There is also (legal) school of thought that has argued the EULA is an unconscionable contract as a whole as you are not presented with the contract until after the purchase and in such a manner as to make it impossible to recover your investment. Unconscionable contracts, by law, are completely void. This argument is still working its way through the court system.

Armchair attorneys need to cool it in this thread
J'accuse!


 
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News Comments > Borderlands' Firm Street Dates
110. Re: Oct 25, 2009, 17:05 JohnnyRotten
 
JohnnyRotten, your entire argument was wasted breath because it's all based on 2K selling a defective product which they did not. The retailer broke the release date. Why can't people get that through their heads?

I'll just quote Dev's post to refute the "it was just the retailers argument":

According to this TV ad thats on TV right now, the game is "AVAILABLE NOW" on PC
http://www.youtube.com/watch?v=z1omVnfGVYw

Note the source of the ad, its from the OFFICIAL 2k Games youtube channel uploaded on the 20th. There is NO separate date advertised for PC version. All versions (xbox 360, PS3, PC) are shown and advertised "AVAILABLE NOW" (the caps are even in the ad)
Screenshot

official borderlands facebook page:
http://www.facebook.com/pages/Official-Borderlands-Page/104080139080
On the left it says:
"Coming Oct. 20 to PS3, 360, and PC platforms!"
Screenshot

http://www.borderlandsthegame.com/
Official game page, says at top "IN STORES NOW" and if you click "buy now" at menu on left, it says "AVAILABLE NOW" showing the PC version.
Screenshot
 
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News Comments > Borderlands' Firm Street Dates
102. Re: Oct 25, 2009, 14:20 JohnnyRotten
 
Aspects of EULA's have been held up in court many times now. You'd be laughed at for taking something to court as trivial as this, especially when it's not beyond the rights of the companies to protect their products and the release date. Only people at fault here are the retailers.

Trivial is a subjective term. It is also not a legal term. Trivial for one can be shown not to be trivial when in the context of thousands. If 2k could be shown through public statements and internal documents to have knowingly sold and promoted a defective product (albeit temporarily), then I believe the possibility exists for a class action. The courts frown on theft, regardless of the amount stolen.

The EULA as a whole or aspects of it has certainly not “been held up in court many times”. I would think the best one could say about the legal enforceability of the EULA is that is completely up in the air. Different courts have ruled differently about the EULA, and no legal precedent yet exists for the enforcement or applicability of the EULA, in whole, or in part at this time. The most interesting case currently before the courts (IMHO) is AutoCAD vs. Vernor, which may finally set the bar.

I also am unaware of any legal precedent of software corporations to “to protect their products and the release date” per se. There are, however, significant amounts of consumer law to protect against the misrepresentation of product performance.

IMHO, there seems to be a constant misperception on these forums that software companies, publishers, and distributers get to have a different (and self defined) rule set with their products at first sale, second sale, etc. This is a place where there IS a large amount of legal precedent, which if I may boil down to a pithy phrase: They don’t.

This comment was edited on Oct 25, 2009, 14:24.
 
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News Comments > Dragon Age Pre-Purchase [Updated]
99. Re: Dragon Age Pre-Purchase Oct 17, 2009, 14:55 JohnnyRotten
 
I'm just going to wait for the "Not confusing as hell" edition that comes with everything so I don't need a chart to keep track of the various things each one includes.

Yahtzee!
 
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News Comments > Diablo II Patch Delay Saga Continues
13. Re: Diablo II Patch Delay Saga Continues Oct 17, 2009, 14:51 JohnnyRotten
 
I can't imagine how increasing the stash size could... ...risk making the game unplayable

Anyone have a clue on this - I'm kinda curious...
 
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News Comments > STO Klingon/Other Faction Details
4. Re: STO Klingon/Other Faction Details Oct 9, 2009, 13:06 JohnnyRotten
 
yes yes yes, but what about us ferengi?

That could be the crafting faction
 
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News Comments > L4D2 Scavenge Mode Revealed
38. Re: L4D2 Scavenge Mode Revealed Oct 9, 2009, 10:54 JohnnyRotten
 
As much improved as this game looks over the original, I'm still going to wait until the first 50% off sale. I figure February or March, considering the time frame of the first L4D 50% off sale.

Same here
 
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News Comments > Dragon Age: Origins Day One DLC Plans
107. Re: Dragon Age DLC Plans Oct 8, 2009, 12:29 JohnnyRotten
 
To me, the DLC primarily appears aimed at monetizing the resale market. I have little doubt the DLC will be available via online purchase only as this has the potential to net the company more sales on every resale. Look at the conditions:

  • Warden's Keep - "it is included in the Deluxe Digital Edition" (the most expensive version)

  • The Stone Prisoner - "which is free to anyone who has preordered or buys any edition of Dragon Age new"

  • Blood Armor - "included at no cost with new copies of the game"


  • Another problem I have here is that for me, the concept of "content" has been morphed into "core game play". These isn't just an additional area to explore, but instead changes how the game works:

  • Warden's Keep - "six new abilities, a variety of items, and a base"

  • The Stone Prisoner - "unlocking numerous story options", "they're commenting on areas as you visit them"

  • Blood Armor - "provide upgraded protection for players"


  • To defuse the "companies have a right to make money" argument - I would counter with the "I have a right to spend my money as I choose" counter argument. Companies that deliver products that don't work to what I believe is their full potential until I hand over more money will not be getting my business. If I really want this product, I'll wait until what I feel is the full product (in this case game + DLC) is on sale for a price equal to or less then the original basic product price.

    I also think the arguments that the game couldn't have been released on time with the DLC in the product is just a red herring. Since the DLC IS being released with the product, if the DLC would have caused delays, then those delays did happen.

    As a side note, I don't find it all that surprising that all the rhetoric from developers and publishers about how things like DRM (reduced piracy) and digital delivery (reduced distribution costs) would reduce the cost of games seems to have vanished now that we have both. Add to that the limited and heavily controlled use (and even installation!) of something we own and function crippled products and we end up with where we are today*.

    * A little hyperbole of my own for fun.

    This comment was edited on Oct 8, 2009, 13:01.
     
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    News Comments > Stardock Boycotting UPS? [Updated]
    123. Re: Guilt by association Oct 6, 2009, 01:09 JohnnyRotten
     
    Monty Python may have said it best: An argument is a connected series of statements intended to establish a definite proposition. Your arguments fail to establish "definite proposition". For example, if just swap the nouns in your statement as follows...

    You're a bit late to this party, but I'll say it again - This is an erroneous comparison. I don't attend the "Church of Obama". I don't go to church for news. Also, radio is a place of learning, indoctrination if you will, into the way that commentator wants you to live. How does a commentator indoctrinate you do you suppose? While there may be some people who follow Wright religiously, I don't know any.

    My willful listening to a commentator is NOT, in my opinion, a case of guilt by association. Again, the difference between a point of contention and a moral divide is a stark one, and it is being ignored by those who would prefer to discredit me because they disagree rather than allow me my opinion.


    ... the arguments are so generic, open ended and flawed with enough fallacies to easily be exchanged into a new, and by your logic, a valid situation by simply substituting the players.

    Your claim appears to be "Person A has belief X because person B has belief X". To support this premise, your inferences resort to guilt by association, straw man, appeal to belief, cause and effect, as well as false dilemma.

    When these fallacies are stripped away, we are only left with the original premise, and no supporting arguments. Without logical deductive or inductive inferences for your premise, your conclusion is unsupported.

    As a side note, your ad hominem circumstantial claim in this latest post seems far fetched, at least as regards to me, as I have made no attempt to discredit you personally, nor have I made any declarative position statements about President Obama, Glenn Beck, religion, or politics*.

    * Nor do I believe anyone is sitting on your chest and not "allowing me my opinion." If this is incorrect, have a proxy let us know, and we'll do our best to send help.

     
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    News Comments > Stardock Boycotting UPS? [Updated]
    121. Guilt by association Oct 5, 2009, 21:00 JohnnyRotten
     
    The difference being that I have documented evidence to support my opinion (how many videos of Wright's sermon's are on the web???) that Obama is a racist (Prez)

    What you say is true, however I have an opinion (Obama is a racist) that is backed by doucmented eveidence (He was a 20 year member of a bigoted church). (Prez)

    This is a classic example of guilt by association. Here's an example of why it is a logical fallacy:

    Have you listened to Glenn Beck before? (MattyC)
    Not only have I heard him; I listen to him regularly (Prez)

    Your logic vis-à-vis Obama, if applied to you, transfers all of the characteristics, statements and positions of Beck to you, including the ones you stated you would like to disavow yourself from ("alarmist", " conspiracy theories", "melodrama", etc.), whether you like it or not.

     
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    News Comments > Out of the Blue
    4. Re: Police Use Acoustic Warfare to Disperse Oct 1, 2009, 13:42 JohnnyRotten
     
    From what I can tell, the noise gun was only there because a protest without a permit is only a couple steps from being a riot.

    Don't think the permit is going to cause, or not cause a riot. In fact, I don't think the permit is sentient enough even to make a decision about what to have for lunch.
     
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    News Comments > Fallen Earth Rises
    24. Re: Game Reviews Sep 23, 2009, 14:44 JohnnyRotten
     
    When it's your game and investment, then you can offer whatever deal you like. As long as it's their game and investment, they get to choose. See how it works?

    That's a double edged sword - When it's my money and my choice, I can decide to play or not to play. As long as it's my money I get to choose whether to invest in their game.

    The games getting some mixed reviews around the tubes. Combine that with the mixed survival record of MMO's in general, and the uncertainties of funding and support from an indie shop, I choose not to invest in the game until they go with a free demo so I can evaluate it myself.

    See how that works?
     
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    News Comments > On Sale
    14. Re: On Sale Sep 22, 2009, 22:24 JohnnyRotten
     
    How does d2d drm work? Hard to tell from their site.  
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    News Comments > StarCraft II LAN Still a Possibility
    48. Re: StarCraft II LAN Still a Possibility Aug 24, 2009, 18:18 JohnnyRotten
     
    Just a quick update, the LAN petition number is now currently at 123,596 people signed. And growing at about a person per second.

    Have there been any internet petition type events that have had any real impact? I'm asking a serious question here, not trying to be troll bait.

     
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    News Comments > Out of the Blue
    12. Re: Out of the Blue Aug 10, 2009, 13:55 JohnnyRotten
     
    ‘Star Wars’ canon is finally shooting itself in the foot.
    "Finally?"

    Mesa think it starting going downhillza with the jackassa who spoka lika this-a.
     
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    News Comments > Out of the Blue
    7. Re: Out of the Blue Jul 30, 2009, 13:07 JohnnyRotten
     
    I think so, it's not one of those whole house fans, just a small fan that exits warm air through the roof.

    Just replaced my Broan attic fan that had the same problem. Be careful - straining to start can also mean overheating the motor which can lead to pesky insurance claims about a burned down house.
     
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