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T O P I C
Response to Apogee
June 2nd 2000, 02:16 CEST by andy

Following our story the other day about the Apogee license agreement, our ever-helpful friends at Blue's News gave Scott Miller an opportunity to obfuscate the issue with some misleading 'assurances'.

This is a response to his comments, which are quoted here in their entirety and addressed point-by-point.



A standard response to the madness! :-)

I must say this is just entirely too funny. And a sad commentary on how little most people understand law.

What's really funny is that Scott criticises people for not understanding the law, but he then attempts to exploit that supposed ignorance...

I will say that anyone who thinks we are trying to control reviews and such are jumping on a bandwagon without really giving it proper consideration. Legally, that's entirely impossible -- but then, most people know less about law than they do making ice. ;-)

This is correct. But misleading.

It is unlikely that Apogee would sue someone for publishing a negative review. Doing so would be a public relations disaster and would go against free speech and fair comment laws.

Instead, the license is constructed in such a way that anyone using an Apogee trademark must agree in advance not to use it in any "negative context". If the trademark if then used in, for example, a critical review, Apogee could sue for breach of contract.

The license agreement circumvents the issue of free speech by creating a separate issue of contractual obligation.

This policy/agreement simply allows fan sites to use our trademarks and copyright character art, etc. Most developers/publishers do not allow this at all. End of story.

I'd be interested to hear one example of a developer or publisher that does not allow reasonable use of trademarks and artwork on web sites or in magazines. Doing so would be commercial suicide as they would lose the vast majority of their free advertising.

We are providing a way for them to do so, though. Lay people, of course, read this policy and become panic mongers.

Other publishers and developers also provide a "way for them to do so" without resorting to such restrictive license agreements. They just... let them. No legal hassles, no contracts to sign, no agreements to adhere to. They just shut up and let them get on with it.

Scott implies that there was some form of pressure on Apogee, from people who run web sites, to create this license. I very much doubt this.

This policy is only for owners of web sites who wish to use our trademarks and copyrights, like www.3dportal.com. Somehow, someone found a link to it and of course jumps to the wrong conclusion, because...hey...it then can become a hot topic. Yippee. Don't we live in a fun society?

When I read this over on Blue's, I questioned the use of the words "somehow" and "found", as these words implied that the agreement was meant to be hidden. Apogee's Charlie Wiederhold responded to this, stating:

That's exactly what it is supposed to mean. This is not an agreement that is intended for the general public, for people who read the 3D Realms news page, nor for the people who play 3D Realms/Apogee games.

This is extremely worrying. Not only are web sites being held to an extraordinarily restrictive agreement that forbids negative commentary, but we, as consumers, were never supposed to know about it.

Surely we have a right to know that a software publisher is dictating what journalists can and cannot say?

Back to Scott:

We might need to make it more clear that reviews are--of course!--not what concern us (nor could we legally prevent negative reviews--that's patently absurd).

Again, correct but misleading. Apogee could not directly prevent negative reviews as such, but they could sue for breach of contract and the threat of that would be enough to make many people behave in an Apogee-friendly way.

It's also worth noting that it is not just negative reviews that are forbidden, it is the use of Apogee trademarks in any "negative context". That would include reporting of bugs, which I would personally assume is the greatest concern.

Apogee no doubt believes that Duke Forever will be an awesome game, but will likely have some teething problems. Inevitably, some journalists will be queuing up to slate it. After four years of development, Apogee will not want their game to lose sales because of bad publicity about bugs.

The hope is, presumably, that this license will give the more ferocious journalists a gentle nudge in the right direction.

It's a web site using our logos next to overly foul, abusive, racist, etc. language or art. For example, we would not allow our logos to be used on a porn site.

Back to important work... <g>

No comment about this.

Springer's Final Thought...

Let's forget about the legalities for a moment. Let's imagine that the world is a nice, sensible, lawyer-free place and the Apogee license could never be enforced.

The fact still remains that Apogee has created that license, and must therefore want people to believe that it can be enforced. Isn't that bad enough?

C O M M E N T S
Home » Topic: Response to Apogee

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#1 by "Dethstryk"
2000-06-02 02:22:06
dethstryk@damagegaming.com http://www.damagegaming.com/
Did the 'Crap go down or was it just me?

As for all of this license agreement stuff, the bottom line is that if Apogee wished to, they could strike down reviews, because the words are there in the agreement. Enough said.


--
Dethstryk
Damage Gaming
#2 by "Andy"
2000-06-02 02:33:13
andy@planetcrap.com
<b>#1</b>, Dethstryk:
<QUOTE>
Did the 'Crap go down or was it just me?
</QUOTE>
It was down for around thirty hours, came back up three hours ago.
<QUOTE>
As for all of this license agreement stuff, the bottom line is that if Apogee wished to, they could strike down reviews, because the words are there in the agreement. Enough said.
</QUOTE>
Yep, I agree with you.

I don't think this issue is worthy of much discussion, or requires it. The license exists, the restriction is included, the potential for legal action is there, and people have a right to be either concerned or unconcerned, depending on their viewpoint.

Ultimately it all comes down to wallet-voting.
#3 by "Darkseid"
2000-06-02 02:34:08
Darkseid-D@planetcrap.com http://www.captured.com/boomstick
Crap got slashdotted

as some fucking idiot LINKED the story instead of pasting their own copy


gee, bet Morns ISP is going to LOVE him for that traffic tidal wave .


um one thing .. did Developium get any pimpage at all in the midst of this ?


Ds<I><B></B></I><I></I><I></I>
#4 by "crash"
2000-06-02 02:35:10
crash@planetcrap.com http://www.planetcrap.com
<i>As for all of this license agreement stuff, the bottom line is that if Apogee wished to, theycould strike down reviews, because the words are there in the agreement.</i>

i, for one, would seriously love to see anyone try to enforce a license like that, 3drealms or otherwise.

for what it's worth, even though Scott Miller's rebuttals in the other thread may not have been AndyApproved(tm) for style and content, i don't think there's an issue here at all.

and that's all i have to say about that. until someone replies to this, anyway. :)
#5 by "VeeSPIKE"
2000-06-02 02:35:13
appliedavoidanc@triton.net
<b>#1</b> "Dethstryk" wrote...
<QUOTE>Did the 'Crap go down or was it just me?

As for all of this license agreement stuff, the bottom line is that if Apogee wished to, they could strike down reviews, because the words are there in the agreement. Enough said.


--
Dethstryk
Damage Gaming </QUOTE>

PC got /.ed, then linked up at Blue's, then linked up at the shack. More that the site could handle, I suppose. It was down for most of yesterday and today.

And based on what I read, agreed.<I><B></B></I><I></I><I></I>
#6 by "Dethstryk"
2000-06-02 02:37:09
dethstryk@damagegaming.com http://www.damagegaming.com/
<b>#2</b> "Andy" wrote...
<QUOTE>I don't think this issue is worthy of much discussion, or requires it. The license exists, the restriction is included, the potential for legal action is there, and people have a right to be either concerned or unconcerned, depending on their viewpoint.</QUOTE>
Scott Miller might be playing "nice guy" and saying they wouldn't do something like attack a review with this license aggreement, but who knows what their lawyers might want to do. That has been on my head ever since this came up.


--
Dethstryk
Damage Gaming
#7 by "Dethstryk"
2000-06-02 02:38:48
dethstryk@damagegaming.com http://www.damagegaming.com/
<b>#4</b> "crash" wrote...
<QUOTE>i, for one, would seriously love to see anyone try to enforce a license like that, 3drealms or otherwise.</QUOTE>
I just think it would be humorous to see 3D Realms try to strike down a review, because surely the court would laugh at such a ridiculious license agreement that infringed on rights such as this.


--
Dethstryk
Damage Gaming
#8 by "G-Man"
2000-06-02 02:42:37
jonmars@shiftlock.org http://www.shiftlock.org
Andy and the gang:

All they could sue for would be the REMOVAL of the copyrighted and trademarked material, which ANY copyright holder can do WITH OR WITHOUT CAUSE and under ANY circumstances. Hence the reasoning and benefit behind being the OWNER of a copyright/trademark.

 - [g.man]
<I><B></B></I><I></I><I></I>
#9 by "Andy"
2000-06-02 02:51:03
andy@planetcrap.com
<b>#7</b>, Dethstryk:
<QUOTE>
I just think it would be humorous to see 3D Realms try to strike down a review
</QUOTE>
They don't need to "stroke down a review", that's not the way UCITA works. They just need to get you for breach of contract. It's sneaky. :)

That's why this particular license is phrased the way it is. (If you study it, it's sort of "backwards", compared to EULA's.)


<b>#8</b>, G-Man:
<QUOTE>
All they could sue for would be the REMOVAL of the copyrighted and trademarked material
</QUOTE>
I would <b>guess</b> (ie: this may be wrong) that they could sue for estimated damages as a result of the breach of contract. If they thought the review cost them 50,000 sales, they could (guess!) sue for the value of those 50,000 sales.

I've never checked with a solicitor about this. I'll try to do that tomorrow, but it will probably have to wait until next week.
#10 by "Dethstryk"
2000-06-02 02:55:33
dethstryk@damagegaming.com http://www.damagegaming.com/
<b>#9</b> "Andy" wrote...
<QUOTE>They don't need to "stroke down a review", that's not the way UCITA works. They just need to get you for breach of contract. It's sneaky. :)</QUOTE>
"Stroke"? C'mon, you quoted me as saying strike. :)

Anyways, even if it is sneaky, isn't that how these really intricate, between the lines laws work anyway?


--
Dethstryk
Damage Gaming
#11 by "Mataglap"
2000-06-02 03:01:35
nathan@player.org
Does anyone remember what's happened with fan sites for very popular properties like Star Wars or the X-Files?  The copyright holders and trademark owners went after the sites for using material that was being used without permission.  (This is exactly what is happening between Metallica and Napster.)  It is proactive and fan-friendly for a company to have a clear policy about this kind of "tribute" usage of copyrighted material.

Agreed:  There is an acknowledged problem with legal language being difficult to understand by the average person and being excessivly wordy.

Agreed:  UCITA is evil.  It is however, only been passed in a few states, and in most of those modified and amended.  It has not been passed in the UK, to the best of my knowledge.

Agreed:  Scott Miller's response was not mild and evenminded, but someone flew off the handle and promulgated a conspiritorial and paranoid FALSE statement about his company which was seen by probably the entire "hardcore" gaming community and spread to the rabid extremist open source community -- cut the guy a little slack, or at least treat him as you would want to be treated -- and that false statement will probably live on like an urban legend.
#12 by "Robin 'roblimo' Miller"
2000-06-02 03:05:53
roblimo@nospam.slashdot.org http://slashdot.org
Mmmmm.... Unlike most people posting about  Apogee's
restrictive licensing terms, I have a pretty fair understanding
of copyright law. And worse, I consulted a lawyer.

Upshot: Apogee has created a license that is full of
limitations that are almost certainly
unenforceable, but if they want to sue you under the
license's  terms  you should be prepared to go to Texas
to defend yourself.

You'll probably win, either directly or on appeal, but you're
 going to spend a pretty fair amount of money on your
defense. You may have grounds for a countersuit, but if you
file one and win, the only real winners will be the lawyers
on both sides, because you and Apogee will almost certainly
run up legal bills that exceed the amount of damages that
either side can possibly claim.

There's an easy solution, of course: if you don't like Apogee's
license terms, don't buy anything from them.  

Reading software licenses is a bad habit. Sadly, I got into it
a number of years ago, and found that most commercial
software companies have license terms that could not be
gotten away with in any other business. Now I use nothing
but Free and/or Open Source Software (and run Linux as my
only operating system, of course.)

But each person needs to make up his or her own mind on
this issue. Those of you who choose to patronize businesses
that lay thousands of words worth of restrictions on how you
can use their products after you've spent your hard-earned
money on them have apparently decided that restrictive
software licenses are okay.  Glub bless you you all!

- Robin "roblimo" Miller
#13 by "Andy"
2000-06-02 03:06:17
andy@planetcrap.com
<b>#10</b>, Dethstryk:
<QUOTE>
"Stroke"? C'mon, you quoted me as saying strike. :)
</QUOTE>
LOL, sorry about that. I type short quotes because I can type them faster than I can cut+paste. Just not as accurately. :)
<QUOTE>
Anyways, even if it is sneaky, isn't that how these really intricate, between the lines laws work anyway?
</QUOTE>
Actually, UCITA is very clear and brazen, which is why licenses such as the Apogee one can also be very clear and brazen.

Have a look at the <a href="http://www.law.upenn.edu/bll/ulc/ucita/ucita200.txt">proposals</a>. It's a huge document, but start going through it and you'll see that it's very easy to understand. It just takes a long, long, long time.
#14 by "G-Man"
2000-06-02 03:22:40
jonmars@shiftlock.org http://www.shiftlock.org
Man I just read through the entire previous 3DR thread, and I'd really like to hit pretty much everyone who wrote the first 60 posts with a stick. HARD.

<b>#11</b> "Mataglap" wrote...
<QUOTE>Agreed: Scott Miller's response was not mild and evenminded, but someone flew off the handle and promulgated a conspiritorial and paranoid FALSE statement about his company which was seen by probably the entire "hardcore" gaming community and spread to the rabid extremist open source community -- cut the guy a little slack, or at least treat him as you would want to be treated -- and that false statement will probably live on like an urban legend.</QUOTE>

<b>56</b> "Andy" wrote... (in the last thread)
<quote>Has anyone here who runs a news site reported this?</quote>

<b>#12</b> "Robin 'roblimo' Miller" wrote...
<QUOTE>Unlike most people posting about Apogee's
restrictive licensing terms, I have a pretty fair understanding
of copyright law.</QUOTE>
Swell. Except the agreement isn't related to their software in any way shape or form, except where it meets up with their trademarks.

 - [g.man]<I><B></B></I><I></I><I></I>
#15 by "Andy"
2000-06-02 03:24:07
andy@planetcrap.com
<b>#12</b>, Robin 'roblimo' Miller:
<QUOTE>
There's an easy solution, of course: if you don't like Apogee's license terms, don't buy anything from them.
</QUOTE>
Usually I'd agree with that attitude, but in this case it's not quite so clear-cut.

Remember, we (consumers) weren't supposed to know about this license. Apogee wanted every web site that covers Apogee games to agree to this license, but did not want consumers to have any knowledge of the restrictions being imposed.

What about other companies that impose similar restrictions and succeed in keeping them secret? What if some have succeeded already?
#16 by "Steve Bauman"
2000-06-02 03:32:14
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>Apogee wanted every web site that covers Apogee games to agree to this license, </quote>
Not true. It only deals with sites that use their properties, as in graphics and such. It's for fan sites, not regular editorial sites. If Blue's News wanted to use Duke Nukem in their logo, they'd have to sign this agreement in order to use it.

And you know what? Almost every other copyright holder would impose similar restrictions.
#17 by "Andy"
2000-06-02 03:43:18
andy@planetcrap.com
<b>#16</b>, Steve Bauman:
<QUOTE><QUOTE>
Apogee wanted every web site that covers Apogee games to agree to this license,
</QUOTE>
Not true.
</QUOTE>
The section of the license that restricts criticism covers "trademarks, logos, images and service marks".

I think you'll find that all sites covering Apogee games will use, for example, the words "Apogee", "3D Realms" and "Duke Nukem". Those are Apogee trademarks.
#18 by "Greg"
2000-06-02 03:58:18
<B>#12,</B> Robin Miller:

<QUOTE>There's an easy solution, of course: if you don't like Apogee's
license terms, don't buy anything from them.</QUOTE>

The agreement is not worrysome for me because I'm a consumer, but worrysome for me because I am journalist (I'm not, but for the sake of argument...)

As a consumer, I can always vote with my dollar for whatever reason I choose. But as a journalist, reviewing and reporting about a company that has the ability to strike anything they don't approve of makes my job worthless. To be a good journalist, you report any news, good or bad.

Greg
#19 by "Desiato"
2000-06-02 04:03:03
desiato_hotblack@hotmail.com http://www.spew2.com
Still trying to build mountains out of molehills, eh?

I'll believe it when I actually seem them do it. Which, I predict -- will be never.

We now return you to this extra edition of dead horse-beating.


Desiato..
#20 by "Steve Bauman"
2000-06-02 04:10:10
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>I think you'll find that all sites covering Apogee games will use, for example, the words "Apogee", "3D Realms" and "Duke Nukem". Those are Apogee trademarks. </quote>
Fair use would protect their use in most contexts, and you'd have to agree to that agreement before it would be binding. I believe you have to agree to it when you download images/logos/sound/music from 3D Realms. If you do not do that, you are protected.
#21 by "Andy"
2000-06-02 04:16:24
andy@planetcrap.com
Steve, <a href="http://www.3drealms.com/policy/index.html">read it.</a> :)

I don't mean to be disrespectful, but you're thinking logically, not legally. As I explained in the topic, this has nothing to do with free speech or fair comment, it's about breach of contract.

They're not idiots. They don't pay someone $200 an hour to come up with a license that they could never enforce.
#22 by "Charlie Wiederhold"
2000-06-02 04:17:25
charliew@3drealms.com
A consumer is never going to have to agree to this agreement Andy. I've said this on BluesNews, I said it in the other thread, Scott said it earlier.

So that gets that part out of the way.

Reviewers will always have the same abilities they have had, and this agreement has no impact on them either.

The only people this agreement affects or is asked to be respected by are those people who request to use our trademarked properties. End of story.

A reviewer could not use a trademarked Apogee property anymore now than they could before the agreement was brought to light. I'm hazy on the use of the words "Duke Nukem" etc. in text though I don't think it means a person can't write an opinion about those objects. What it means is that a person who is going to use our registered properties can not take that text and modify it to apply it to a negative cause.

As someone mentioned elsewhere, this means they can't make a "Puke Nukem" shirt and sell it otherwise they have violated the agreement they agreed to when we gave them the rights to use our properties.

You are never asked to agree to this. Reviewers are never asked to agree to this. Game players are never asked to agree to this. The only restrictions you have yourself is that of standard trademark and copyright laws. Same as always.

Every single company that has trademarks has a similar agreement. I guarantee that Coke, Pepsi, Disney, Starbucks, etc. all have similar agreements covering their property. You can write a review of the new Pepsi drink, you can use their logos to some extent under fair use clauses (I'm not sure on the specifics of this), but you can't use their trademarks any way you like. If you are given permission to use them, then you are bound to agree by the terms they set when you agree to that.

Again, the reason nobody should be worried about this is because none of you are having to agree to it. Follow standard trademark laws and you are fine. If you wish to run a fan site or a magazine which will make use of our properties beyond fair use, then you have to agree to the terms which we set.

This is all so normal that it's amazing it gets twisted this way. It's something used to aid the community, and is something that every copyright owner does and should have.

I understand that the way it is presented is confusing, I hope that we clear it up, but that's what a quick email to the company asking about it could have helped. If Scott then ignored you, or stated that yes we do in fact wish to get rid of negative reviews... *THEN* it would make sense to go nuts over this. Until then it is speculation, and it is not only off base but completely wrong.

Charlie Wiederhold
#23 by "Charlie Wiederhold"
2000-06-02 04:28:01
charliew@3drealms.com
<quote>Again, correct but misleading. Apogee could not directly prevent negative reviews as such, but they could sue for breach of contract and the threat of that would be enough to make many people behave in an Apogee-friendly way.</quote>

Incorrect. We could not sue them for breach of contract, because they never agreed to the contract in the first place. That would be like suing somebody for violating an NDA that they never signed.

You have not agreed to this agreement, neither has any of the customers, nor the journalists. You can't use our trademarks beyond what is allowed normally, but that also means you can state your opinions, etc. just as you always have.

The only reason Coke get's to use Pepsi is because they agreed to a similar setup, and vice versa.

Charlie Wiederhold
#24 by "Steve Bauman"
2000-06-02 04:40:36
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>I don't mean to be disrespectful, but you're thinking logically, not legally. As I explained in the topic, this has nothing to do with free speech or fair comment, it's about breach of contract. </quote>
I have read it and I haven't signed it, so I haven't agreed to be bound by its terms. If I do not violate any copyright or trademark laws when writing about Apogee products (such as using their actual Duke Nukem logo), I'm in the clear. Fair use protects most usage that concerns reviews.

<quote>They're not idiots. They don't pay someone $200 an hour to come up with a license that they could never enforce. </quote>
Nor would they pay that money to sue someone who writes a negative review.
#25 by "Steve Bauman"
2000-06-02 04:43:12
sbauman@adelphia.net http://homepages.together.net/~sbauman/
By the way, this may have been lost in the other thread on this subject, but <a href="http://www.salon.com/business/feature/2000/06/01/starbuckssuit/index.html"><b>here's </b></a> a link to a story about the kind of situation 3D Realms is attempting to protect themselves from. It's not a perfect example, but it is similar.
#26 by "Vengeance[CoD]"
2000-06-02 05:06:15
rhiggi@home.com
<b>#22</b> "Charlie Wiederhold" wrote...
<QUOTE>
A reviewer could not use a trademarked Apogee property anymore now than they could before the agreement was brought to light. I'm hazy on the use of the words "Duke Nukem" etc. in text though I don't think it means a person can't write an opinion about those objects. What it means is that a person who is going to use our registered properties can not take that text and modify it to apply it to a negative cause.
.....

I understand that the way it is presented is confusing, I hope that we clear it up, but that's what a quick email to the company asking about it could have helped. If Scott then ignored you, or stated that yes we do in fact wish to get rid of negative reviews... *THEN* it would make sense to go nuts over this. Until then it is speculation, and it is not only off base but completely wrong.

Charlie Wiederhold </QUOTE>

I definately dont want you to be my lawyer.  "i don't think" is never a phrase I want to hear from my legal counsel.  If your confident the law is behind you, be <b>sure</b> of what your saying.  Otherwise it looks as if you are just making excueses.

<quote>Incorrect. We could not sue them for breach of contract, because they never agreed to the contract in the first place. That would be like suing somebody for violating an NDA that they never signed. </quote>
 Also remember this is being discussed in the context of UCITA (although our local experts tell us it will never be law :-) ), so arguably, reading that makes it a legally binding document.

You haven't said anything other than the usuall "feel good" lines companies invariably give to the public.  You say it is "wrong" and "complete speculation" but you haven't cleared up any facts.  When you can say this can not be used against someone in a court of law, then you won't see any arguements from me.  If you can't say that, its, <b>at best</b>, an ambiguous contract.


V

<I><B></B></I><I></I><I></I>
#27 by "None-1a"
2000-06-02 05:11:33
none1a@home.com http://www.geocities.com/none-1a/
<b>#24</b> "Steve Bauman" wrote...
<QUOTE>Nor would they pay that money to sue someone who writes a negative review. </QUOTE>

Interesting but didn't the topic of vage threats, come up in the reviews topic. From some of scott's comments on this while it's original intent was to give a clear indication of how there name and matiral could and could not be used on fan sites the door has been opened that would alow there lawyers to go after a review if they felt the need (let's face it the agreement could have been worded in a way that excluded reviews by simply adding a clause saying some thing to the effect of Reviews on our products via any web site, newgroup posting, or traditinal media are  eximpte from this useage agreement).

I can just see the first bad review of an 3DR game (well assuming the lawyers deside to use he threat).

The game developed by some company out of Texes, had a some what compeling story with some interesting charectors. But, included a number of crash bugs, including a bug that completly disalowed finshing the Game. There where also some major let downs along the way, and it requires a major system to run. (boy, doing a review with out using any matiral that's wholy owned by the develer is extreamly hard, better ready the 50 point type for this)  
<I><B></B></I><I></I><I></I>
#28 by "Charlie Wiederhold"
2000-06-02 05:27:54
charliew@3drealms.com
<quote>I definately dont want you to be my lawyer. "i don't think" is never a phrase I want to hear from my legal counsel. If your confident the law is behind you, be sure of what your saying. Otherwise it looks as if you are just making excueses.</quote>

I am not legal counsel. I am not even an official voice on the topic. I haven't discussed this with Scott and I haven't discussed it with George beyond a quick blurb at dinner last night.

I make sure to let you know that I'm not 100% clear on fair use laws so that you can know where I'm coming from. I'm not going to lie to you and state that I'm 100% positive on fair use when I'm not. I am 100% positive about what this agreement can be used for though, and won't shirk that. Sure I'm biased about the agreement because I work here, but I've got the exact same information that you or Andy or anybody else has, and it clearly makes no sense that this is being applied the way it is.

Ok, here is an example: This agreement does not and will not ship with any games we make. A reviewer purchases the game, plays it and writes a review of it. They don't not violate any trademark laws, but they are scathing in their review and point out say thirty awful bugs.

They have never visited our webpage so they couldn't have possibly read the agreement there. The agreement was not shipped with the game so they couldn't have read it there. You can not legally bind someone to an agreement they have never read nor had the chance to agree to.

Therefore: There is no way that this agreement can be used legally against you or anybody else *except* those people who are bound by it because they asked for permission to use our properties beyond the normal fair use laws. Otherwise we would *have* to ship this agreement with our games, and we would *have* to place it as the first thing you see when you enter our website.

I am saying flat out, that unless you have agreed to this contract, you are in no danger of it. The only reason you would have ever been given the opportunity to agree to this contract is if you requested to use our properties beyond fair use.

<quote>Also remember this is being discussed in the context of UCITA (although our local experts tell us it will never be law :-) ), so arguably, reading that makes it a legally binding document.</quote>

Only because Andy wanted to add some meat to it. It has little bearing on UCITA as it is the same sort of agreement that all trademark holders need in order to protect themselves when they give permission for others to use their property.

Andy and others simply read it and assumed it applied to them when it didn't. That is a confusion I can understand, especially for the people who were only directed to the agreement and were not able to read it in the context it is presented on our webpage, but again point out that a simple email to Scott would have instantly cleared it up, but that wouldn't make a good story would it? Taken in context, it's even more pointed that the purpose and application is to protect us for usage of those properties beyond fair use. Not to ban negative reviews or any other such thing.

<quote>You haven't said anything other than the usuall "feel good" lines companies invariably give to the public. You say it is "wrong" and "complete speculation" but you haven't cleared up any facts. When you can say this can not be used against someone in a court of law, then you won't see any arguements from me. If you can't say that, its, at best, an ambiguous contract.</quote>

Ack! I have too. I said specifically: <b>This contract does not apply to you the gamer, reviewer, etc.</b> The only people it applies to are people who request use of our trademarked properties.

There are countless examples of people who could never even have a chance to read this agreement, yet it is being spun here like it still applies to them. That is clearly not going to work.

<quote>I can just see the first bad review of an 3DR game (well assuming the lawyers deside to use he threat).

The game developed by some company out of Texes, had a some what compeling story with some interesting charectors.</quote>

That's the sort of misconception that I'm trying to clear up here. We can't restrict them from writing reviews like they always anymore than a movie studio can restrict reviews of their movies.

Fair use is fair use and we can't get around that. However if someone wants to use our properties beyond that... you've got to agree to our terms. That's standard and necessary. If you don't protect your properties they become exempt and you no longer have any control of your content.

Charlie Wiederhold
#29 by "Charlie Wiederhold"
2000-06-02 05:36:26
charliew@3drealms.com
<quote>Fair use is fair use and we can't get around that.</quote>

I should probably add that we wouldn't ever want to get around fair use. Most people would probably not have thought I meant that, but you never know. CYA. :)

Charlie Wiederhold
#30 by "Vengeance[CoD]"
2000-06-02 05:49:09
rhiggi@home.com
<b>#28</b> "Charlie Wiederhold" wrote...
<QUOTE>
I am not legal counsel. I am not even an official voice on the topic. I haven't discussed this with Scott and I haven't discussed it with George beyond a quick blurb at dinner last night.

I make sure to let you know that I'm not 100% clear on fair use laws so that you can know where I'm coming from. I'm not going to lie to you and state that I'm 100% positive on fair use when I'm not. I am 100% positive about what this agreement can be used for though, and won't shirk that. Sure I'm biased about the agreement because I work here, but I've got the exact same information that you or Andy or anybody else has, and it clearly makes no sense that this is being applied the way it is.
</QUOTE>

I know your not "legal council", I'm giving you a hard time :).  I understand what you are saying and how you can see the agreement in that light, especially since you work where you do.  <b>But</b> lets look at a few line in the agreement:

<quote>
Please review the following terms and conditions carefully. This Agreement is a legally binding contract between you ("You") and Apogee Software Ltd., a/k/a 3D Realms, ("Apogee") regarding your access to and use of its web site (the "Site"), as well as your use of Apogee's various games (collectively, the "Property"), the information contained therein and its copyright and trademark policies. By accessing the Property, you agree to the terms and conditions as outlined in this legal notice. Apogee reserves the right to change these terms and conditions from time to time at its sole discretion. Your use of our Property following any such change constitutes your agreement to follow and be bound by the terms as changed
</quote>

Notice the word "Property" and what it defines: "various games".  Now the next sentence: "By accessing the Property, you agree to the terms and conditions as outlined in this legal notice." and "Your use of our Property following any such change constitutes your agreement to follow and be bound by the terms..."
From this, me the layman, reads:  By using games made by Apogee [Property], I enter an agreement with them.  Starting to sound like an EULA huh?  Now given that we're talking about an agreement I've apparently agreed to by using a game (again remember UCITA) we can go on to talk about the next part.  Namely, all the stuff about using thier "Marks" which includes the names of their games in a negative light.  Now do you see the other side of the argument?  


You may <b>know</b> that this will never be included in a EULA and never be seen by anyone on your web site, but we don't <b>know</b> that.  In the absence of that knowledge we are left only with the wording of the contract with which to base our opinion.

V







<I><B></B></I><I></I><I></I>
#31 by "crash"
2000-06-02 05:55:34
crash@planetcrap.com http://www.planetcrap.com
lol you guys are so silly sometimes. can you imagine the shitstorm if DNF sucked, i wrote a review hammerin the crap out of it, and Apogee/3DR whipped out the lawyers to try to get it removed?

THINK, people, THINK. this isn't the goddamned X-Files, okay? jesus <b>christ</b>.
#32 by "Vengeance[CoD]"
2000-06-02 06:14:07
rhiggi@home.com
<b>#31</b> "crash" wrote...
<QUOTE>lol you guys are so silly sometimes. can you imagine the shitstorm if DNF sucked, i wrote a review hammerin the crap out of it, and Apogee/3DR whipped out the lawyers to try to get it removed?

THINK, people, THINK. this isn't the goddamned X-Files, okay? jesus christ. </QUOTE>

This is why we put "not for consumption" on bricks.

V<I><B></B></I><I></I><I></I>
#33 by "Charlie Wiederhold"
2000-06-02 06:18:04
charliew@3drealms.com
<quote>You may know that this will never be included in a EULA and never be seen by anyone on your web site, but we don't know that. In the absence of that knowledge we are left only with the wording of the contract with which to base our opinion.</quote>

Yes, I'm aware of the confusion that has arisen, especially by people who have only read that agreement and not the manner in which it was presented. I think many people still went off half cocked, but my initial reaction when all I had read was the agreement was similar to theirs. Once I discovered how it was presented, who is asked to agree to it, and compared it to similar contracts by most other trademark owners, it cleared itself up in my mind.

You are no longer in the absense of knowledge. Scott stated specifically what the agreement was used for and who it applies to. No matter how colorful his commentary was to it, he did state who/when/why it had it's applications. The only followup is people who still don't trust that, which indicates that they simply think he is lying and hiding something. That's nothing new, someone always thinks that, there isn't much you can do once that happens.

However if he is lying about it, document it. Write down when he specifically stated who it was applicable towards and if the company tries to use it beyond those grounds, present that information to the people who it is being tested against.

Better yet would have been a standard contact by the people who had problems with it to try to clear any confusion regarding it.

The way the contract is presented though, is fairly clear in it's intent. It's probably more clear to myself, and less clear to anybody who is looking for something wrong with it. Nature of the beast I suppose. It is there under the documentation of ownership of our webpages and credits for the webpages. It is linked as "For more information:" in regards to how the ownership of those trademarks is handled beyond fair use. Which obviously we make plenty use of.

You were never asked to agree to that contract when you first went to our webpage, so how could we possibly enforce it?

Charlie Wiederhold
#34 by "None-1a"
2000-06-02 06:21:04
none1a@home.com http://www.geocities.com/none-1a/
Um, please read the section on my post above what you quoted. I'd like to know if you guys just have very crapy lawyer or there was a plan by mangement to using this agreement in the futures if problems didn't arise for other things. Logic would dictate that if this agreement was only intended to be used for your porpirties by fan sites there would be something to exclude the use in reviews, spacificly in light of of exactly how the agreement uses the term 'properties' to discribed logos, names, and games. I know that's sounds like i'm advocating a conspirsy there, but any contract should state not only the matiral it covers, and it's use but also who exactly is effected by it, the 3DR contract simply states in a general term you (as in the reader), not the exact person it deals with.

<b>#28</b> "Charlie Wiederhold" wrote...
<QUOTE>That's the sort of misconception that I'm trying to clear up here. We can't restrict them from writing reviews like they always anymore than a movie studio can restrict reviews of their movies. </QUOTE>

Sure the above quote is true as of this date, but assuming the UCITA was passed in Texes this same agreement would easaly be sent along with review copies of any games, and be binding and inforcable (Andy's reasons for bringing up the UCITA). <I><B></B></I><I></I><I></I>
#35 by "Apache"
2000-06-02 06:30:12
this argument is pretty silly. although as someone who makes fan sites, the topic does interest me...
#36 by "Steve Bauman"
2000-06-02 06:38:54
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>although as someone who makes fan sites, the topic does interest me... </quote>
It should. If you were to sign the contract in order to get access to "official" 3D Realms stuff, you could be sued for breach of contract if you wrote negative things about the product.

Of course most fansites don't write a lot of negative stuff, but still...
#37 by "Apache"
2000-06-02 06:55:44
<quote>Of course most fansites don't write a lot of negative stuff, but still...</quote>

True, but that isn't always the case... I think after awhile the established sites stop kissing ass and start writing impartial news that reflects the concerns of the community. Which results in some pretty nasty private exchanges. In the end though, it's a symbiotic relationship and with any family, there's bound to be a little nastiness along the way.

Or in my case, a lot of the time ;)
#38 by "Steve Bauman"
2000-06-02 07:19:46
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>I think after awhile the established sites stop kissing ass and start writing impartial news that reflects the concerns of the community. Which results in some pretty nasty private exchanges. </quote>
But in a worst case scenario, it could become a legal matter. I seriously doubt anyone would ever do this merely due to the massive PR hit. It couldn't possibly be worth it.
#39 by "Apache"
2000-06-02 07:30:23
<quote>But in a worst case scenario, it could become a legal matter. I seriously doubt anyone would ever do this merely due to the massive PR hit. It couldn't possibly be worth it.</quote>

This is true, it could become a legal matter. But -- most game companies love fan sites. If this weren't the case, they wouldn't put up with all my crazy shit. :)

Even in the worst exchanges I've had with developers, not once has the threat of legal action been made. (At least not yet!)

Scott Miller is a savy guy, and I don't think he'd resort to that either.
#40 by "RahvinTaka"
2000-06-02 07:38:18
donaldp@mad.scientist.com
<b>#39</b> "Apache" wrote...
<QUOTE>Scott Miller is a savy guy, and I don't think he'd resort to that either. </QUOTE>

And if Scott is outed and Fred "I am a meanie" Smith comes into power .... the sites would be stuffed. It's not so much the matter of whether it is likely, but more of whether it is possible.<I><B></B></I><I></I><I></I>
#41 by "Apache"
2000-06-02 07:45:52
<quote>And if Scott is outed and Fred "I am a meanie" Smith comes into power ....</quote>

And if my Uncle had a sex change, he'd become my Aunt. Some things just aren't likely to happen. :)
#42 by "Nick"
2000-06-02 08:31:35
Has anyone ever seen a review of Mcaffee's AntiVirus software? Well... you never will simply because they say in their license that you can't do that. That is why I don't use it and instead I use AVP.
#43 by "Jeremy"
2000-06-02 09:02:26
jnthornh@eos.ncsu.edu
<b>#34</b> "None-1a" wrote...
<QUOTE>the 3DR contract simply states in a general term you (as in the reader), not the exact person it deals with. </QUOTE>
And <I>that</I> is really the entire problem; whoever wrote this contract didn't include the standard terminology to define who "you" is.

Normally you would see something like (forgive me if this is slightly off, my legalese is a bit rusty):
Persons who wish to use the copyrighted material presented on this site in any manner beyond that which is already covered in the "fair use" portion of copyright law [henceforth referred to in this document as "you"] must agree to the following terms and conditions regarding the use of such properties...
I think defining the "you" is just a generally good idea when writing a contract of any sort.

Jeremy<I><B></B></I><I></I><I></I>
#44 by "Creole Ned"
2000-06-02 09:58:00
cned@home.com http://www.quirkybastards.com
PlanetCrap was down for a day and *this* is what I missed? And two separate topics for the same bloody thing?

I agree with crash on this one, mountains out of molehills. Some people really need to stop being so obsessively paranoid about everything. The idea of 3D Realms taking legal action to stop the publication of negative reviews is so laughable and ludicrous, yet there are people here who genuinely believe they might do that. Pathetic. <i>THINK</i>, for the love of Pete. Just think for a minute...the whole thing is ridiculous.

And I *have* read a number of reviews of McAfee's VirusScan software, usually in comparison to other anti-virus products. They were in print magazines, so I don't have links handy, but perhaps I can find some.

Creole Ned
#45 by "Desiato"
2000-06-02 11:36:11
desiato_hotblack@hotmail.com http://www.spew2.com
I'll be happy to take Andy's copy of DNF -- provided he was ever going to get one shipped to him.

Luckily I don't pretend to interpret things that I have no formal schooling in.

Charlie has been more than patient responding in this thread, and frankly -- I think it is time wasted. Get back to work on the game!!
Hehehe.

Have a good one guys -- I'm waiting for the next *real* topic.


Desiato..
#46 by "Bad Mama Jama"
2000-06-02 12:08:49
Can being /. be considered a DOS attack?

ignore me.  ;)
#47 by "Pete Closs"
2000-06-02 14:30:34
<b>#46</b> "Bad Mama Jama" wrote...
<QUOTE>Can being /. be considered a DOS attack? </QUOTE>

Nah. Technically, a DOS attack is different if I remember correctly, even though the effect is the same. :)

<b>#46</b> "Bad Mama Jama" wrote...
<QUOTE>ignore me. ;) </QUOTE>

Ah. D'oh. ;)
<I><B></B></I><I></I><I></I>
#48 by "flamethrower"
2000-06-02 15:14:36
flamey_at_evil@hotmail.com http://flamethrower.evilavatar.com
Charlie

"The only people this agreement affects or is asked to be respected by are those people who request to use our trademarked properties. End of story."

So, a review of Duke 4 that says "this is Daikatana's big gay brother" might not be allowed to use screenshots or other copyrighted materials, but one that sucks Duke off will be allowed to use screenshots, glipses of the logo, etc?

Is that PLAUSIBLE or even POSSIBLE under the licence?

"this means they can't make a "Puke Nukem" shirt and sell it"

AND sell it? They can't even make a Puke shirt and not sell it, right? Or as you saying they CAN make Puke shirts for non-profit?

<b>I cannot even begin to consider the irony of this postion given the bods at 3DR made anti-JAR JAR BINKS t-shirts. </b>

Or were you were hoping we'd forgotten about that, Charlie?????

The comparision to McCrappy Virus Non-Protection is apt ... even if 3DR doesn't enforce this licence, if they become standard you can bet your itchy anus someone will.

Anyone want to review the next Todd Porter game? (even if it sounds like he suddenly joined 3DR ;)
#49 by "Vengeance[CoD]"
2000-06-02 15:38:22
rhiggi@home.com
<b>#30</b> "Vengeance[CoD]" wrote...
<QUOTE>Please review the following terms and conditions carefully. This Agreement is a legally binding contract between you ("You") and Apogee Software Ltd., a/k/a 3D Realms, ("Apogee") regarding your access to and use of its web site (the "Site"), as well as your use of Apogee's various games (collectively, the "Property"), the information contained therein and its copyright and trademark policies. By accessing the Property, you agree to the terms and conditions as outlined in this legal notice. Apogee reserves the right to change these terms and conditions from time to time at its sole discretion. Your use of our Property following any such change constitutes your agreement to follow and be bound by the terms as changed </QUOTE>

Sure are a lot of poeple who enjoy talking to themselves.  Re read that first part of the contract.  WTF.  It specifically spells out "Apogee's various games".  How can you not see that? It doesn't say "tradmarks" mush less "trademarks only".  It specifially says games. GAMES.  If its not supposed to apply to games, why are they in there?  Why are they part of "Property" making thier use (playing apogees games) all you need to do to "sign" this contract (under UCITA).
either:
A) Someone needs better lawyers.
B) Something sneakys going on here.

Whether its legally binding at the moment is irrevelant.  Its obviously a flawed contract at the moment.  There is no harm in pointing that out. btw: It says who <b>you</b> are.  <b>You</b> are <b>anyone</b> who uses thier property.

<quote>
Luckily I don't pretend to interpret things that I have no formal schooling in.
</quote>
If you actually didn't do what you said you didn't do, I dont think we'd see any posts from you at all (saving some bandwith in this case).

V<I><B></B></I><I></I><I></I>
#50 by "Steve Bauman"
2000-06-02 18:20:37
sbauman@adelphia.net http://homepages.together.net/~sbauman/
<quote>So, a review of Duke 4 that says "this is Daikatana's big gay brother" might not be allowed to use screenshots or other copyrighted materials, but one that sucks Duke off will be allowed to use screenshots, glipses of the logo, etc? </quote>
Screenshots are protected by fair use laws. Using logos in certain contexts is also permissable.

<quote>AND sell it? They can't even make a Puke shirt and not sell it, right? Or as you saying they CAN make Puke shirts for non-profit? </quote>
Parody is protected (for the one-off), but you cannot commercially exploit it.

<quote>The comparision to McCrappy Virus Non-Protection is apt ... even if 3DR doesn't enforce this licence, if they become standard you can bet your itchy anus someone will. </quote>
Get your itchy anus over to ZDNet (or anywhere else) and actually do some research. I found five product reviews of McAfee Virus Scan in 30 seconds.
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