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6 hours ago, Wilhelm Kerman said:

The problem so many people have with the new EULA (kinda including me) is that it is so much more authoritarian than the 'old' one. There are threads talking about Take Two putting spiders and/or probes into 1.4 to spy on you for whatever reason. Personally, I hate the new EULA. But I don't think it will impact my gameplay to a serious extent. I don't live in the US, and I have never been there, so I don't abide by US law. No one will stop me keeping good 'ol 1.3.1 on my computer as well as 1.4.

This. Setting aside most of the legal technicalities (apart from one specific one - more on that in a minute), the problem I have with this whole mess is the attitude that's gone with it. We've heard nothing from Take Two since they bought the rights to KSP and then suddenly they're marching in with size 10 Lawyer Boots. New EULA. New terms and conditions that we have to agree to before getting access to the forum, or the wiki. Opt-in dialogue boxes confirming that you want to send information back to Squad, disappearing.

These may indeed be standard terms and procedures - but standard to a big name AAA title. They don't sit as well with a game like KSP which owes a lot to player created content of various kinds. Think of the mods that have either been incorporated directly into KSP or inspired Squad to incorporate their own version of them. Think of the number of modders that have worked for Squad at one time or another. It's kind of fallen by the wayside recently but think about The Daily Kerbal and it's showcasing of various videos, fan-art and other player generated content.

So, whilst I can't speak for anyone else, I didn't like Take Two's 'we own everything' style of EULA. Whether they intend to enforce, or can enforce, most of it is largely irrelevant. It's the fact they thought it was a good idea in the first place that grates. It smacks of disregard for and disrespect of, the KSP community.

On to that specific point I mentioned.

I have a long-running fan-fiction thread on these forums, so I was naturally curious to see what the new forum T&C's say about such things. Turns out that they say this:

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SUBMISSIONS

The Company welcomes input from the gaming community. You hereby grant the Company an exclusive, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use any submissions you submit to the Company of any nature whatsoever, whether through a posting on a Company website, email to the Company, mail, or any other means and without any obligation to account, credit, or make any payment to you for any use thereof. No purported reservation of rights incorporated in or accompanying any submission shall have any force or effect.

No obligation to make any payment. Meh - OK. Opinion can reasonably differ on that and it wasn't something I was seriously expecting anyway. No obligation to credit me for my work - that I don't like at all. No reservation of rights - lemme get back to you on that. I'm not especially happy about this but not having an obligation to do something isn't quite the same as saying that you're not going to do it. On the other hand, it is typical of the whole bad attitude thing I mentioned above. I don't see why TT need to include this or what it gains them. And again, whether or not they intend to enforce it is irrelevant - it's the fact they thought it was a good idea. 

Moving on to the EULA

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USER CREATED CONTENT: The Software may allow you to create content...*snip*

 You hereby waive and agree never to assert any moral rights of paternity, publication, reputation, or attribution with respect to Licensor's and other players' use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. This license grant to Licensor, and terms above regarding any applicable moral rights, will survive any termination of this Agreement.

Umm. Let me get this straight. We're talking about any content created through the software. Doesn't matter where you host it - if it was created through the software it falls under this EULA. For example, any Missions created through the new expansion (which is pretty much the signature feature of the expansion) are caught. Also - this is an explicit waiver of rights. It's not a case of Take Two choosing whether or not to enforce this - it just happens. So - if you create a Mission, under this EULA you waive your rights to be acknowledged as the creator of that Mission. You also waive the right to object to derogatory treatment of it, or to object to anyone doing anything with it that would reflect badly on your own reputation. And, in a final rotten touch, that waiver survives termination of the Agreement.

Well that fills me with warm fuzzies. To be clear, 'moral rights' are completely separate to so-called economic rights conferred by copyright law. Pick up any book you choose and take a look at the copyright page. Chances are excellent that you'll see a line to the effect of:  "NamedPerson asserts her right to be identified as the author of this work."

NamedPerson may not hold the copyright to her own work. She may not legally own her work (probably not if she has a publishing contract) and she may not earn much money from it. However, she sure as heck retains her right  to be identified as author.

 

Personally, I think that's a big deal and I'm seriously unhappy about Take Two's attempt to have you sign those rights away. That's why I've got my pitchfork out.

Edited by KSK
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Before making absurd claims like "they now own my mods!" or "they now own my fanworks!", read through the primary thread discussing the EULA.

1: Licenses aren't ownership. Having a license means they can use item X, but not that they own it. Assuming there are no copyright-infringement issues going on, they cannot stop you from continuing to distribute that material with your own license indefinitely.

If, tomorrow, they decided to release a DLC containing your favorite MIT/BSD-licensed mod, they could do that... but they would have to carry around the original license header, and they couldn't stop the original mod-writer from continuing to distribute the original mod. Fanworks such as stories, screenshots, videos, etc, are a slightly more complicated issue due to the implicit license the EULA grants them.

2: None of the changed language applies to mods. The language about "not modifying game files" probably means "don't touch stuff Squad wrote or try code injection: mods must simply be layered on top". I'm under the impression FAR, for example, has to let KSP calculate the stock aerodynamic forces, and then applies a force countering the stock aerodynamic force before applying its own aerodynamic force. The stuff about "content generated by using this software" also clearly does not apply to the external programs modders use: Blender, Visual Studio, Mono, etc.

Because mods are generated outside the confines of Squad software, they're largely untouchable by this EULA: Take Two does not have an implicit license to them. An ARR-licensed mod is untouchable without your explicit permission, and something under GPL would force KSP to become GPL-license, which means KSP becomes open-source.

3: The very release post for 1.4 stated "The modding community is very important to the Kerbal Space Program team, and we continue to encourage and enable mods for KSP moving forward.". That doesn't exactly sound like "we're going to be shutting mods down now because we like twirling moustaches."

 

4: When it comes to fanworks such as fanfic, fanart, screenshots, etc, you've always been at the mercy of either Squad/Take Two not pursuing a copyright infringement claim, or hoping the judge agrees it's fair-use. The legal ground for that remains exactly as shaky as it's ever been. While the changed terms of the EULA do grant them a license to such, see 1: licenses aren't ownership. I'm also pretty confident it's just in case they decide to make a central repository for distributing Mission Builder missions: to re-distribute your missions to other players, they kind of need a license to do so.

The sole moustache-twirling thing they can do now is re-distribute stuff like fanfiction, fanart, screenshots, etc. without attribution to the original author or his/her preferred license and without his/her permission, and that would be such an unpleasant move even I'd get upset if they didn't immediately apologize. The safe thing for them would be to ask, and somehow, I suspect the vast majority of fan content creators would be very happy to have their stuff featured by Squad/Take Two. If for some reason fan content creator X doesn't like the idea, they'll move onto fan content creator Y: it's not like there's a shortage of fan content creators.

5: They still haven't changed a whit of their practices. This is a storm in a teacup until such time as any of your fears are realized.

 

Overall, a lot of the fears surrounding this EULA continue to support my belief that you really need a lawyer's expert opinion before jumping to conclusions. I've been through enough intellectual-property training to recognize the difference between a license and a copyright, but even still, my analysis may be flawed... other than point 5.

 

EDIT: A very relevant post from the main discussion thread, finally, an actual lawyer's opinion:

8 hours ago, artwhaley said:

So, I asked my lawyer.   She required me to point out that this is general discussion, not legal advice and doesn't create an attorney client relationship and varies wildly by jurisdiction, especially since KSP has an international audience.   She also required me to take out the trash.  ((I'm dating a lawyer.))  She did a quick google and this is what she said.

EULA's are considered contracts of adhesion -  which doesn't outright invalidate them, but the courts generally recognize that they aren't entered into from an equal power relationship and there's no opportunity for fair negotiation, so when an issue comes up, the court WILL examine whether the provision in question was fair to start with (unconscionability) before trying to enforce it.  And where ambiguity exists, they will err on the USER'S part based on the principle of Contra Proferentem - preference against the draftsmen.  That's part of why they're worded so unfairly...  the court starts out scowling at the big company... so to get back to a point of fairness they try to make sure every definition is spelled out in THEIR favor.

US courts are split by circuit on EULA's in general, so where you live matters if you have to sue Take Two.  All of the cases where they've come up are generally decided with very narrow scope - the court says that this particular clause in this particular contract is enforceable or not...  intentionally not ruling broadly about whether types of clauses work in general.

No contract releases you from liability for negligence.   If Take Two doesn't take reasonable precautions with your data and it gets hacked- you can sue them and will probably win.   Same as all of the other companies that know a scary amount about you.   And likewise - if they take reasonable precautions and still get hacked - you probably weren't going to succeed at suing them whether you'd signed an EULA or not.  It's the same as those 'liability waivers' you sign when you do anything athletic or dangerous.  The principle function of those waivers is to make you THINK you can't sue them.   A business's due diligence cannot be waived or disclaimed.  That said - losing your name and address and the fact that you played KSP for 5000 hours isn't going to rise to the level of any sort of damages.  You're not that important.  Your identifying info is already in lots of public databases.   Pay 4 dollars to any of those 'find out who owns this phone number' websites for proof of that.  So giving it to another company or to Russian hackers isn't damages in and of itself.   Now if that company or those hackers find a way to actually hurt you... then you have damages.

EULA's 'set the tone' for a discussion, but they do not finish the discussion.   Of particular interest might be Specht v. Netscape Communications Corp., where the court found that the EULA was unenforceable because you could download and install the software BEFORE agreeing to it. 

I asked about the legality of changing an EULA long after purchase.  She said that her group of friends had discussed the topic a while back when Rockstar made EULA changes.  The general consensus in her office was it wasn't automatically void, and companies weren't obligated to offer a refund if you wanted out, but that if a term that had changed after purchase (and outside a reasonable return/refund period) was challenged in court, they were confident that it would be fairly easy to prove unconscionability of the new provision.   Before you invest a few hundred hours in a game, a take it or leave it clause is one thing.  Once you're way into a game, you're in even less of a fair position.

So...  the overall answer is - clicking yes on an EULA does NOT automatically transfer ownership of your soul just because they said so.   Your legal position if you have to sue is a LITTLE worse than if no agreement was in writing, but that any term you have issue with will be examined to figure out if it was legally valid in the first place at that time.

The principle of Contra Proferentem, for example, would suggest that the "we may collect data..." clause would not permit spyware. One could interpret that clause in two ways: "we may collect submitted data", or "we may harvest data from your machine using spyware, lololol". If the judge rules that clause was ambiguous, Contra Proferentem would suggest "go with the interpretation that favors the consumer", that is clearly the one that would forbid spyware.

Edited by Starman4308
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Good post @Starman4308 - thanks. If I could offer a slight correction to your first point, that depends on the license and what you've said only applies to non-exclusive licenses. An exclusive license for any purpose in all territories (for example) would prevent you from entering into another license agreement with another party. 

Also, about the moustache twirling ( :) ) in Part 4 - as I understand it, that also applies to Missions created through the Mission Builder, and is a bit more worrying for those, since the EULA is attempting to have you explicitly waive your right of attribution. Not sure whether that would stand up in court but it's rather more moustache-twirling than the terms for fanfic etc. which simply give TT the option to ignore attribution if they wish.

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1 minute ago, KSK said:

Good post @Starman4308 - thanks. If I could offer a slight correction to your first point, that depends on the license and what you've said only applies to non-exclusive licenses. An exclusive license for any purpose in all territories (for example) would prevent you from entering into another license agreement with another party. 

Also, about the moustache twirling ( :) ) in Part 4 - as I understand it, that also applies to Missions created through the Mission Builder, and is a bit more worrying for those, since the EULA is attempting to have you explicitly waive your right of attribution. Not sure whether that would stand up in court but it's rather more moustache-twirling than the terms for fanfic etc. which simply give TT the option to ignore attribution if they wish.

I understand that concern, and all I can say is that I don't think they would try it. I, for one, would get pretty upset about deliberately not attributing the fan contributor. I still haven't purchased Making History because the mods I use will likely take months to update, and if they start twirling their moustache, well...

I suspect it's more for things like "oops, posted somebody else's screenshot by mistake" or "oops, we posted a JPG instead of the original PNG" and are trying to eliminate any source of accidental liability.

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I really don't understand what all the worries are about.

  1. Don't you have a feeling that the Take Two's EULA is just a standard text not specifically adapted for KSP (online transactions, game money etc.)? And do you still worry while playing other games too?
  2. "Making copies": this item was always there. Now you have finally read that line, congrats. And I was a little confused every time people admitted or advised to make copies of the game on the forums. But noone ever was warned or pursued, because IMHO noone needs to do that as it does no damage as long as you don't distribute the software.
  3. "Modifying the software": this means you cannot reverse engineer, change and then reassemble it as a solid product. Making mods by the means that the software provides itself doesn't count as modification of software.
  4. Intellectual property on anything created with the use of the game: as for mods, I don't worry at all. I would just be happy if the developers integrated some of my ideas into the game and took responsibility of maintaining it. I'd saved my time and got the game with the features I want. The only thing I'm a little worried about is if someone could take my hard work and say that he did it, thus getting all the girls' love that I should have :) So mod licenses remain for that purpose.
  5. Data collection: well... use firewall. "The software  may not function properly in that case" - we'll see. And you can't be sure that the ones who does not state it won't do it, right? So having a firewall up is always a good idea. And if you still don't then you may think of your data as they are already compromised.
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3 minutes ago, Ser said:

I really don't understand what all the worries are about.

  1. Don't you have a feeling that the Take Two's EULA is just a standard text not specifically adapted for KSP (online transactions, game money etc.)? And do you still worry while playing other games too?
  2. "Making copies": this item was always there. Now you have finally read that line, congrats. And I was a little confused every time people admitted or advised to make copies of the game on the forums. But noone ever was warned or pursued, because IMHO noone needs to do that as it does no damage as long as you don't distribute the software.
  3. "Modifying the software": this means you cannot reverse engineer, change and then reassemble it as a solid product. Making mods by the means that the software provides itself doesn't count as modification of software.
  4. Intellectual property on anything created with the use of the game: as for mods, I don't worry at all. I would just be happy if the developers integrated some of my ideas into the game and took responsibility of maintaining it. I'd saved my time and got the game with the features I want. The only thing I'm a little worried about is if someone could take my hard work and say that he did it, thus getting all the girls' love that I should have :) So mod licenses remain for that purpose.
  5. Data collection: well... use firewall. "The software  may not function properly in that case" - we'll see. And you can't be sure that the ones who does not state it won't do it, right? So having a firewall up is always a good idea. And if you still don't then you may think of your data as they are already compromised.

What is Mod an abriviation of? 

Mod-Modify-Modification

He He, get it now?

Edited by Cheif Operations Director
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2 minutes ago, Cheif Operations Director said:

What is Mod an abriviation of? 

Mod-Modify-Modification

He He, get it now?

No :) We call it a "mod" but  actually it is just a slang word. "Plugin" would be a more precise term. And noone would charge you just on word basis. Like if you call it a pistol, you won't be accused in illegal weapon possesion.

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1 minute ago, Ser said:

No :) We call it a "mod" but  actually it is just a slang word. "Plugin" would be a more precise term. And noone would charge you just on word basis. Like if you call it a pistol, you won't be accused in illegal weapon possesion.

By adding let's say a graphics mod are you actively changing the game?

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3 minutes ago, Cheif Operations Director said:

By adding let's say a graphics mod are you actively changing the game?

At least in the way not violating the discussed terms as long as it is done in the way provided by the game, using documented functions and public methods. In contrary with .exe or direct memory alteration and so on.

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8 minutes ago, Cheif Operations Director said:

And then upload a youtube video...

As for youtube video, the vast majority of games are distributed under similar terms but I've never heard of any troubles streamers had. May be someday they will, the world is crazy, but what can you do about it?

EDIT: I recall, a War Thunder streamer once had some troubles having his channel closed but the person who initiated it has been immediately fired with apologies to the community.

Edited by Ser
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It's time to stop feeding the trolls.  If they were legit worried, they'd have uninstalled or called their lawyers by now.   They're just stirring excrements up.   Ignore them.   I bet they get bored and go back to playing KSP.  You know.   The thing they claim is the worst thing for personal liberty since the Patriot Act.

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9 hours ago, Renegrade said:

From that self-same copyright.gov site, which, by the way, you linked from a Steam link:

And a scary thought occurs to me - KSP is a C#/mono project, which means that it turns into bytecode, like Java does, not actual executable code (the CLR/mono does that dynamically at runtime), and could very well also not be a "computer program" in some contexts.  Also, be advised that great deals of the US's copyright law have been superseded and/or rendered moot by the Digital Millennium Copyright Act, which more or less prohibits the doing of ANYTHING.

I posted the same thing in the steam forums where they are freaking out as well. Links in steam don't copy and paste well.

I am not familiar with a EULA case involving 3d models but if you have a ruling I would like to see it. Otherwise it’s just conjecture.

Quote

Are YOU now offering this as free legal advice, by the way?

Actually, most people have it backwards for legal advice. It’s illegal for someone who is NOT an attorney to give legal advice, or an attorney to practice law outside of where they are licensed. As for giving actionable legal advice, I am giving information for which anyone with google could find on their own.

So no advice, only information.

Quote

Whether shrink-wrap licenses are legally binding differs between jurisdictions, though a majority of jurisdictions hold such licenses to be enforceable.

Consider too, this scenario: the police raid your place and seize your equipment, totally in error, but then discover that you have illegal backups.  They're going to want to prove wrongdoing at that point to justify their raid and seizure....

 

The point here is the EULA is a contract and many times courts have ruled that if you have a EULA it supersedes copyright law, and if you can get around accepting the EULA you have a case against it.

http://vondranlegal.com/software-publishers-suing-for-breach-of-contract-end-user-license-agreement-eula/

 

In the case where the cops seized your computer by mistake, (the evidence would be inadmissible because the warrant was not for you and constitutes an illegal search and seizure)

https://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/warrant-had-wrong-address.htm

 

But anyway, the search was there to find a criminal act (violation of copyright law) while the EULA would be under civil jurisdiction. So it’s one or the other, not both.

https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases.html

 

Never trust anything on the internet without a legitimate source for that information.  Otherwise they are just talking out of their butt….

Edited by frizzank
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10 hours ago, katateochi said:

People have said that, but there's nothing to actually support that happening. The only bit of hard data I've seen is in this comment

I'm not suggesting that there is. I am presenting the fact that people are talking about it and are worried about their right to privacy.

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19 minutes ago, frizzank said:

In the case where the cops seized your computer by mistake, (the evidence would be inadmissible because the warrant was not for you and constitutes an illegal search and seizure)

https://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/warrant-had-wrong-address.htm

That's only in the states - in a lot of places (including Canada), incorrect police procedure only results in punishment for the officers involved/responsible, and does NOT invalidate the case.  And you might find the current administration down there is less interested in procedure and more about results...

By the way, since what you said does not constitute legal advice from an attorney (that's why I asked), it's also 'conjecture'.  Heck actual legal advice is also conjecture too, although a degree of responsibility occurs in that case.  I am indeed not an attorney either, nor offering legal advice, just some friendly conjecture based on my reading of the rules and situation.

I'd have to say though, conjecture vs conjecture, I'm saying, "be super cautious with this, it could land you in hot water" and you're saying, "everything's fine, there's nothing to worry about".  I dunno, but one of these sounds prudent and the other a bit reckless.

19 minutes ago, frizzank said:

But anyway, the search was there to find a criminal act (violation of copyright law) while the EULA would be under civil jurisdiction. So it’s one or the other, not both.

https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/cases.html

Okay, here's the thing:

1. Fair use prevents you from infringing copyright when you have an unauthorized copy (and unless Take Two specifically authorizes it, it's unauthorized).

2. Without fair use's protection, all you're left with is..an unauthorized copy, which is copyright infringement.  Which is a felony.

3. The law you quoted states that an agreement can nullify the protection of fair use.  No more protection -> infringement -> felony.

Again this isn't legal advice, but my conjecture, based on the reading presented and my knowledge of the law.  And again, I'll point out that you're offering nothing but conjecture either.

You can read about Fair Use and it's erosion at the hands of nasty things like the DMCA at the Electronic Freedom Foundation.  They have dozens of articles about it.

https://www.eff.org/deeplinks/2017/02/fair-use-consumer-protection

Anyhow, enough of this crap, I have an expansion to play (which thankfully didn't present me with any sort of EULA.  I'm taking people's word that the EULA they saw is the same one that appears on Take Two's site, as the application itself has never shown it to me, and the only thing I found in the installation directory was basically Creative Commons Attribution credits), and as much as I like teasing our hardworking moderators, they're probably getting seriously annoyed at this endless EULA talk by now, so good day sir. (or ma'am. or whatever you prefer).

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6 hours ago, artwhaley said:

It's time to stop feeding the trolls.  If they were legit worried, they'd have uninstalled or called their lawyers by now.   They're just stirring excrements up.   Ignore them.   I bet they get bored and go back to playing KSP.  You know.   The thing they claim is the worst thing for personal liberty since the Patriot Act.

Yes I have played KSP since I started complaining, lead him to the gallows! I payed for it! Furthur more I can't legally file a lawsuit for anything so why call a lawyer? We would be in the same spot. Again I payed for it! I'm not going to uninstall unless their is evidence they are actually transmitting. That being said I'm very much concerned about the security risk and them getting greedy down the road. What I don't understand is why you are attacking me and other KSP players, for a concern, very few people have actually accused Take Two of taking the data again I said A FEW not NONE. Further I won't buy this expansion until I see something from  Take Two, not squad Take Two. I'm trying to notify other KSP players so, if they choose, can take nessicary precautions. Unfortunately in terrible at computers and can't do all this fancy firewall stuff. 

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Fun fact. Whenever somebody points out a possibility of some bad stuff happening, there's always a lot of those who (a) equate criticism to hate and (b) answer concerns with "nothing has happened yet, you're hysterical" and whatnot. Then, when inevitably, sooner or later, bad stuff happens, the same people who pointed at the problem in the first place get to say "I told you so" and receive another answer: "Well, it's too late _now_, bad stuff happened, you should get over it and move on". I love this community. Stay weird, you weirdos. :cool:

Edited by J.Random
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15 minutes ago, J.Random said:

Whenever somebody points out a possibility of some bad stuff happening, there's always a lot of those who (a) equate criticism to hate and (b) answer concerns with "nothing has happened yet, you're hysterical" and whatnot. Then, when inevitably, sooner or later, bad stuff happens, the same people who pointed at the problem in the first place get to say "I told you so"

I, and others, have suggested preventative measures. These are in fact the only measures one can employ, other than not playing the game. Getting Take Two to change their EULA is simply not going to happen.
Or do we think that a few of users on a game forum waving their arms about is going to force a rethink of an industry-wide practice?

If anyone has a practical action that can be taken now, I'm listening. If all you have is fearmongering and complaining, that's just noise.

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1 minute ago, steve_v said:

I, and others, have suggested preventative measures. These are in fact the only measures one can employ, other than not playing the game. Getting Take Two to change their EULA is simply not going to happen.
Or do we think that a few of users on a game forum waving their arms about is going to force a rethink of an industry-wide practice?

If anyone has a practical action that can be taken now, I'm listening. If all you have is fearmongering and complaining, that's just noise.

We could boycott... I mean I really don't want to but it might be out only option if they won't listen. 

A three week boycott might be a good idea and en just renewing it until we get an answer or change.

All though I really don't want to I've been looking forward to this for a year but I'm not going to sell my own identity.

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3 minutes ago, Cheif Operations Director said:

We could boycott

If you can get a significant fraction of their customers to follow you, perhaps... I find that extremely unlikely.
And what are you going to boycott? Playing KSP? Why would they care?

Edited by steve_v
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1 minute ago, Cheif Operations Director said:

If 1/4 to 1/2 of this forum and forum viewers such as people who just read the forums did it might.

You won't convince 1/4 of the forum to forgo the shiny thing, and only a small percentage of people who buy the game come here...
Your average gamer goes "Ooh, shiny" and thinks nothing more of it, this is how companies can get things like this EULA to fly to begin with. Nobody reads, or cares about, software licences.
You can try though.

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