Poppi opened this issue on Sep 10, 2002 ยท 52 posts
kbade posted Wed, 11 September 2002 at 8:44 PM
Restraint of trade and antitrust issues are even more technical than questions of contract law. How does one define the market? Is it the market for: Poser content; character creation and animation programs; or the 3D graphics market? It was that aspect of the EULA that seemed most questionable to me upon first reading. Specifically, Section G of Content Distribution, which bars uses that could cause competition with the Program...who draws that line, and where? For example, should Victoria 3 be considered competition to the Program (which is defined in the EULA to include not only the app, but also the CR2 file format), or should it be viewed as a product which makes P5 more marketable? Past posts by kupa and other CL folk show that they have held the latter view. Accordingly, it would be difficult for CL to adopt a different position, even if they wanted to, as no one wants to be in a deposition, or sitting on a witness stand, and be confronted with past inconsistent statements. Moreover, I would repeat my prior opinion (fwiw) that sections A & J permit so many uses that the language about the proprietary file formats is included to prevent the development of a direct competitor to P5. Indeed, to digress momentarily, I would note that most intellectual property disputes don't wind up in a full-blown court case. If for some reason CL thought someone was or might be infringing on their rights, the first step would likely be a letter or e-mail from an attorney. Such disputes might well be resolved without a lawsuit. Also, to allay quixote's concerns, I would note that section J specifically states that users may create props, hair and clothing for sale and distribiution; each is expressly listed, and not identified by reference to a particular file type. I'm sure I probably come off as more trusting of CL than most on this issue, which is unusual, given that I am a lawyer (albeit one who almost never has to argue a case I don't agree with). However, my general assumption is that the EULA was written by a lawyer for CL. And lawyers are used to reading this sort of document and thus probably do not find it as much of a chore as people who actually contribute to society (half-kidding there). And while it would be better if the EULA was written in plainer English, the fact is that many states require insurance policies to be written in plain English -- a requirement that has had little or no affect on the amount of lawsuits involving their interpretation. In urging people to read the EULA closely, particularly how much is specifically allowed, I would ask people to put themselves back to the first time they dabbled with a 3D graphics app, whether it was Poser or something else. Remember the learning curve involved? Again, I will agree in a second that there shouldn't have to be a learning curve for reading a software license...but there generally is. I also look at how much more readable the rest of the P5 manual is in comparison to the P4 manual. Maybe CL can get a writer like Nosfiratu to work with its lawyer next time they need to draft their EULA. For now, as noted above, it's a matter of consumer choice. I give CL credit for having published the new EULA in advance of the product rollout, so that prospective buyers were at least able to read it before ordering or receiving the box.