simmy11

I apologize if my tone implied like I was taking offense at the Avsim staff with that comment. That was not my intent. I just hope that Avsim ensures that the rights of users and developers are balanced and that would mean allowing meaningful discussion of whether or not an EULA is being violated. As I have said, its not the situation in question, but more of a pattern I have noticed, and I for one do not want to be banned for discussing these aspects. This is not a commercial forum, its a community forum, and I would hope we would be able to continue to have these types of discussions. As for your EULA example, I understand that devs (and their lawyers) put those terms into the agreements but that does not mean they are enforceable (and fwiw my GEX and UTX EULAs contain no such provision). A clause like that would be very tough to convince a judge to enforce. Say I buy a 3dsMax subsrciption with that language in it. If they decide to materially alter the agreement a week after I buy it and install it, to the point that I cant use it for what I intended to use it for (say, commercial distribution of work product, which was allowed when I purchased, installed, and agreed to the EULA), do you think a judge would say tough, you cant use the software and the developer can keep the money? It might work that way overseas, but US courts call that an unconscionable contract. One party cannot have a unilateral right to modify the material terms of a unequally bargained EULA without prior consent of the other party. The agreement can be written that way, but that does not mean its enforceable. EULAs for all practical legal purposes are worthless. The real teeth comes in copyright and patent law which, in the US, is a DMCA (Digital Millennium Copyright Act) violation. Thanks for all your work to keep the community strong!

I do understand that and thank you for the kind words on my posts. I apologize if I was out of bounds and I AM NOT advising anyone to violate any EULA. What I am saying is that violating an EULA is up to each individual and does not necessarily equate with "breaking the law" as some have made it out to be. It a decision each person should make on their own and with the language they agreed to in mind. I would advise everyone to read their own specific EULAs and come to their own conclusion (not the conclusion of the developers or Avsim staff) as to whether or not they are in violation. I myself am more than comfortable installing into P3D with the EULA I agreed to, if I ever decide to do so. I also wasn't talking about the bullying in this specific post or the post in question, but more of a pattern that I have noticed over the last weeks. It just seems when the OP expresses his opinion on this, people (and some might be developers who are bullying him) have resorted to basically calling him a criminal, unethical and immoral. That is why I came to his defense as well as to correct some of the misconceptions concerning EULA and IP law. I want Avsim to continue to provide this great community to all of us and in no way want to harm its interests. I also dont want to be banned for expressing my opinion that devs do not have the right to limit our use of a product when we agreed to a EULA which does not contain the language they are citing today. Thanks Hook. I look forward to catching more of Stephens artful warnings!

Again with all due respect to Mr. Allensworth, the admins and mods (and I think this is why Ian is offended at being termed a law breaker) the Avsim staff does not have the ability to figure out who is and is not violating their EULA. Like I pointed out in my post, I purchased and installed my GEX software many years ago and none of the EULA restrictions they are currently quoting as forbidding use in P3D exist in my EULA. I cannot be deemed a violator of that EULA if I install into P3D because I did not agree to the terms they are quoting. A developer does not have a right to terminate an EULA without cause and they cannot modify the EULA without my permission. Ian, being a long time member, is most likely in the same boat as me, and probably has an EULA that would allow him to install into P3D. Again, I read the specific language of my GEX and UTX EULAs on my lunch break, and it contains very, very little restriction on its use. These alleged restrictions were introduced after P3D came on the market and would not be applicable to any person who installed the software prior to the inclusion of that language. Find out from the developers when it was included and you might be able to start to make informed assumptions about who is and is not in breach. That being said, I completely understand the policies that Avsim must implement to protect its own interests. I would, again, just encourage the staff to take a light hand to the moderation of posts and not make uninformed assumptions and/or comments about who is violating EULAs. I would just like to encourage the admins and staff to take the considerations and needs of the development and user communities into account equally when deciding on the right policies. Violating an EULA is not piracy. Violating an EULA is not a copyright violation. It is a violation of a contract and in my opinion the Avsim staff should treat this much differently and with a much lighter hand than the obviously necessary restriction on discussions of IP infringement. Thank you very much for the lively discussion and I'm glad that I could contribute meaningfully to it.

No, its not simple, and that's why there are lawyers, judges and courts. In general though, since you demand a Yes/No answer, then I will say No, I do not. I can enter into a contract to buy goods from someone for a period of two years. 6 months later my situation changes and my business is no longer able to purchase these goods at said price. My only realistic choices are to renegotiate or breach the agreement. It would be unwise to allow a contract to further harm myself or my business. Likewise with a bad landlord ... I have the right to move out whenever I want if the situation warrants itself. If the landlord doesn't like, he can sue for damages, but if I felt unsafe, I have no moral/ethical dilemma breaking the agreement. Your right to breach is often leverage in renegotiation, because if the other party doesn't come to other more agreeable terms, they may be out the cost of the contract or the cost of the contract plus litigation costs. If they come to new terms, they still keep a customer and business and they avoid litigation costs. It is neither unethical nor immoral to break a contract. It is a RIGHT reserved to the parties in a contract, just like the right to sue for breach. If you cant accept that logic, then tough ... I guess I'm a bad person. As for my particular case, Did you bother to read any of the other part of the post before demanding a Yes/No answer? MY copy of the software that I purchased and installed contained none of the restrictions on its use of the sort Flight1 and SS are claiming. I can read quite well and I checked. I will never be in violation of any EULA for GEX or UTX, and if Flight1 or SS disagrees with me, they are welcome to bring suit. I will post the contents of said EULAs if anyone is interested so that all of you IP law experts in this thread can tell me I'm violating the agreement or being unethical in any way. allain -- since XP10 and FSX require completely different sets of code in order for the products to function in the respective sims, I would never consider an XP10 add on and a FSX/P3D add on as the same product and would happily pay twice for the amount of time spent developing on each platform. When you take what will essentially be the same product and update the installer and add a few enchantments, yes, I feel cheated by a greedy developer As I said, its their right to pursue this strategy but they lost a long time customer to FTX because of it.

With all due respect, this is not an accurate statement (as pointed out above) and you, sir, should really not be adding false information to a topic that already has one community member highly offended, and for good reason. As I said, I hardly ever post and am more of a lurker on this forum, but I could not stand to see Ian bullied by ignorant armchair lawyers anymore. Kudos Ian and I hope the admins and Avsim staff will take a good hard look at its policies in regards to moderating and/or hosting the P3D forums.

Ah, you see, there is the big problem. Did I freely enter into any restrictions in the licensing agreement when I PURCHASED the product? I made the purchase without agreeing to anything and only when I went to install the software I already paid for was I presented with the restrictions of its use. This is why laserit (who probably, like me, has actual experience dealing with EULAs) pointed out that they are sometimes unenforceable in court. Its called a shrink wrap or click wrap license and jurisdictions vary wildly as to whether or not they are enforceable. Additionally, some jurisdictions do not ascribe to the "licensed not sold" theory, and instead reason that I purchased the software, and did not purchase a license for it, and therefore, I can do with whatever I please. The EULA in those jurisdictions is completely meaningless as there is no license. Usually, these EULAs are only permitted to stand in court if they offer the licensee a means of returning the product for full refund if they do not agree to the terms. These software EULAs are called "contracts of adhesion" and are considered "unconscionable" and therefore unenforceable. I have written several of these during my career. FWIW, my EULAs with GEX and UTX have no such provisions. As for me personally, I purchased GEX and UTX in late 2008/early 2009 and I checked my EULAs. Oddly enough, they say NOTHING about installing in software other than FSX nor do they have any restrictions on "training or academic usage". That is the EULA I entered into when I installed the software (if the EULA is even enforceable as written, which would be litigated). Even if they offer updates, they cannot materially alter the EULA that I originally entered when I installed the product. So, as for me personally, I am not even in violation of the EULA if it is enforceable. I personally can do whatever I please with these products in P3D and I challenge anyone else to prove me wrong. I am sure I am not the only one who installed this software years ago and is in this position. Now that I have checked the EULAs myself, I am even more convinced that this isnt even about liability and instead is all about the money. I am very curious about when Scenery Solutions and Flight1 inserted the provisions they claim prohibit installation into P3D. That, IMHO, will dictate who is in compliance and who is not. I only entered this discussion to correct some of the terribly inaccurate armchair lawyering that has been going on in these threads and I was tired of seeing Ian, who is largely correct in his position, getting bullied over this. I would encourage the mods to be very careful when moderating these topics as you can't be sure that violations are occurring. And I totally agree that FTX World will be a great addition to BOTH my FSX and P3D installs. Bye bye GEX and UTX. P3D is made to be backward compatible with FSX addons. XP10 is not. Did you ask the same questions when people where porting FS9 addons to FSX? That question also goes to the mods. Did you close topics when people where discussing how to get payware aircraft and scenery from FS9 to FSX?

I disagree that its unethical to breach a contract. I am not in breach of my ethics as an attorney (in any jurisdiction in the USA) if I advise a client to breach a contract. And the "ethics" go both ways. Should the developer prevent personal use of the software in P3D simply so they can make an installer that is compatible with P3D and resell it again to the consumer. No it is not unethical. But is it the right thing to do? Both sides of this argument have to ask themselves that questions and come up with their own answers. My point being, no one side should try to claim the moral high ground on this argument because their isn't one. I think Ian is simply asking that the righteous indignation from some in this community come to an abrupt halt. That includes people snipping about "bad ethics", mgh. I'm pretty sure I have a sophisticated understanding of the term "ethics" and I in no way see an ethical breach by installing software you paid for in a compatible program. Again, a breach and violation of the EULA ... yes. Unethical ... absolutely not!!

Actually, you do have a right to install it and use it in any way you would like. Yes, you would be in "breach" of the EULA, but the only remedy the developer would have is to sue you for breaking the agreement. And, (here is the key) the developer would have to show damages. Now, the developer cannot show damages until they have a product that competes with its FSX products in P3D. Hence, why scenery solutions and Flight1 have been putting up such a fight. They are developing a package for P3D (that will most likely be cost prohibitive to most "academic" users) and until they can show damages, they are screaming at people to not use their products in P3D, in order to maintain a client base and market share for the new product. Everyone should remember one thing when we have these stupid EULA arguments: an EULA is a contract between you and the developer. Breaching a contract is a valid strategy in many situations and it is not necessarily illegal, unethical and/or immoral. I have advised clients to breach contracts on many occasions because it is in my clients interest to do so. If the developers care enough about these breaches, they will bring suit, but again, they have to show damages, and in order for the litigation be worthwhile, they will have to show significant damages. Hence, the developers tactic of threatening and scaring people about "breaching" the EULA -- the legal options for these people are few, so they resort to scare tactics, intimidation, and harassment. I've seen it in these forums and Ian is right to be a little upset about it. I for one will no longer purchase anything from Scenery Solutions and Flight1 is also putting a bad taste in my mouth over the GEX stuff. They claim its an issue over "training and academic usage" which, in theory, could bring them more liability. However, I don't see how adding scenery enhancements to a training sim would bring major liability concerns. A full aircraft with accompanying FDEs -- sure there are liability concerns there (see PMDG). But I still fail to see how adding a few textures or some street lighting to a scene will bring added liability. Its all about the chance to gouge "commercial" customers for high priced packages. Just have a look at the Flight1 Aviation Technologies page. $300 for an upgraded "mission builder" and you cant even develop with it for that price?!?!? This is just ridiculous. I actually looked into purchasing it to design some mission enhancements, but if I can't even commercially develop for a $300 license, then they can bend over and kiss something I'm too polite to speak of here. Ian, as long as you are using the sim and the addons for personal use, I would not sweat over the language in the EULA and no one else should give him or any other person installing addons into P3D any more grief. The developers have a means of pursuing action if they wish to, but as I outlined above, they won't because it is not worth it. All Scenery Solutions and Flight1 are trying to do is keep its loyal customer base from using the products they have already purchased in another sim. They want you to pony up for what will be very expensive packages for P3D. I for one think this is a misguided business strategy but it is their strategy and they have a right to pursue it. Since you bought the product, I say go ahead and use it. Just do like me and stay away from any new "upgrades" or "service packs" that they put out that are just updates to break compatibility with P3D. To the EULA police out there, so long as a person is using P3D for personal, academic use, leave them alone about these stupid restrictions. They have a right to breach their contract and the developers will not pursue its rights to sue for that breach. It's as simple as that!! If someone is using P3D for commercial use and is violating these EULAs, by all means inform the respective developers and they can take action. But lets all agree that personal/academic users can and will do whatever they want with the software they purchased. I for one will become a loyal Orbx customer and since Orbx is so helpful with its customers and doesnt try to SCREW them out of the use of hundreds of dollars of addons they have purchased over the years, I hope they continue to devour a larger and larger share of the market in relation to scenery solutions and GEX. The former's developers are arrogant, condescending and ungrateful and that usually does not bode well in the business community. So to scenery solutions, GEX, and the EULA police out there ... GO FLY A KITE! Kudos Ian for being resilient in the face of legal bullies. I for one enjoy your posts and look forward to conversing with you in the future.