FC: "Magic, the Gathering" site includes digital rights management?

From: Declan McCullagh (declanat_private)
Date: Fri Jun 28 2002 - 07:03:31 PDT

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    [It would be useful to have some context here: Is this a new addition to 
    the policy? What is the justification for it? [I couldn't find the text on 
    the site -- what's the exact URL?] I hope that opposition to DRM schemes 
    doesn't become so kneejerk that we begin to oppose everything that has 
    those three characters attached to it. It makes sense to learn first what 
    the purpose of a DRM scheme is and what the implications are. --Declan]
    Date: Fri, 28 Jun 2002 09:32:03 -0400
    From: Nick Bretagna <onemugat_private>
    To: legalat_private
    CC: custservat_private, editorat_private,
        zDeclan/Politech <declanat_private>, jerrypat_private,
        lettersat_private, pcmagat_private, machroneat_private,
        pcmagat_private, bill_howardat_private, sobelat_private, Cindyat_private
    Subject: Very *interesting* new-type clause in "Magic, The Gathering -- 
    Online" licensure...
    To the legal minds and administrative people at Wizards.com --
    >5. The Kontiki Software or particular Content may include or enable a 
    >digital rights management software program ("DRM"), either
    >proprietary to Kontiki or provided by or licensed from a third party. DRMs 
    >are designed to manage and enforce intellectual property
    >rights in digital content provided over the Internet. You may not take any 
    >action to circumvent or defeat the security or content usage
    >rules provided or enforced by either the DRM or the Kontiki Software. DRMs 
    >may be able to revoke your ability to use applicable
    >Content. Kontiki is not responsible for the operation of the third party 
    >DRM in any way, including revocation of your ability to use
    >Content or the collection or use of information collected from you by the 
    >third party DRM.
    This language, as provided, is preposterously open ended. At the very best, 
    you need to adjust it to ack that  you will:
    1) Expressly act to limit any possible DRM software to only functioning on 
    or regards your property, and not allow such to control or limit actions 
    with regards to anyone else's property.
    2) Acknowledge that I may unilaterally choose to disassociate myself from 
    your software and properties entirely if I do not choose to comply with the 
    constraints or actions of said software and/or any future versions of it, 
    and that I may do so by unloading all versions of your IP in their 
    entirety, explicitly including any and all "hacked" or "modified" versions 
    of the software and/or data.
    3) Acknowledge that it will not allow you to explicitly examine the 
    contents of my machine at your will.
    4) That the above provisions will not be altered without expressly and 
    visibly calling those alterations to the user at the time of any relevant 
    The potential for abuse otherwise is considerable, since it clearly 
    effectively constitutes an open-ended agreement from me to whatever 
    controls the DRM software provides and is not limited to anything I can 
    reasonably foresee at this point to which I might choose to disagree. This 
    includes not just whatever IP claims, no matter how absurd, some current or 
    future organization demands (one not even necessarily associated in any way 
    with MtG-Online except by use of the same software), but also to whatever 
    invasion of privacy their most paranoid whims deem necessary to enforce them.
    Forget it. There is no way in hell anyone sensible would give you such an 
    open-ended agreement to place any software on my machine having nothing 
    whatsoever to do with your property.
    Please be advised, I'm going to call public attention to this questionable 
    addition to the standard licensure rules, through a number of venues, as 
    well as advising anyone I know who plays the game. I think it's quite clear 
    to anyone with any legal sense just how open ended this paragraph is, and 
    just how absurdly expansive the powers it presumes for you.
    Do note, my objection is not with regards to your protection of your own IP 
    -- my objection is to the simple and obvious fact that, with this 
    agreement, for example,  you could make a direct deal with the RIAA and/or 
    the MPAA, (or be purchased by their agents), and then install whatever DRM 
    software on my machine they wanted, and even go so far as to deny me the 
    option to uninstall the software, given the absurdity of the DMCA.
    This DRM software could then, once more, particularly through the DMCA, 
    allow you an uncontrolled right of invasion of my privacy simply on the 
    off-chance that I might be violating someone's IP rights... and I would 
    have no recourse but to accept such invasion by virtue of this agreement.
    I don't now nor will I ever grant you the right to install whatever 
    software you want for any purpose you want with you having no 
    responsibility to limit it to specifically protecting your own property. 
    This clause is preposterously and unnecessarily broad.
    I also reject the open-ended lack of limitation on how such DRM may function.
    Please adjust it to respect rights of your users and adjust it as needed to 
    remove this possible misuse. In general, it would be wisest to remove the 
    clause entirely, as it is unlikely you will be able to limit its potential 
    for abuse and still be able to claim the powers you seek.
    It appears to me as though it's going to be important for all users to 
    start openly rejecting this type of clause, as even if you concede, as you 
    should, that it is overly broad, other companies are likely to try to slip 
    the same sort of overbroad requirement past the user.
    In general and in specific -- at no point at this time or at any future 
    time, no matter what "licensure" agreements I may inadvertently agree to, 
    will I ever willingly agree to allow a company to violate my privacy in the 
    pursuit of protecting or controlling their IP.
    I hereby repudiate, publicly, that such a notion can or will occur without 
    express acceptance of the clause in question calling for such allowance., 
    in each and every instance such may occur.
    In this arena my right of privacy comes first... and you can bet it damned 
    sure comes before anyone's IP rights to a card game.
    ------- --------- ------- -------- ------- ------- -------
    Nicholas Bretagna II
    POLITECH -- Declan McCullagh's politics and technology mailing list
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