Zampled gone down

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nickb523
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Post 12 Jul 2019


WongoTheSane
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Post 12 Jul 2019

Boombastix wrote:
12 Jul 2019
QVprod wrote:
12 Jul 2019
If NI never made a copyright claim (according to this they haven't viewtopic.php?f=7&t=7507209&hilit=copyright), then they have no reason to take any further action and refunding every person who bought any Softphonics products would be a financial loss. As it is, they're simply allowing the people who payed for a product to continue to have access to it, I wouldn't equate that with piracy.
I'm sorry if anyone thinks I put to much effort into this, but I just want to avoid that guesses/assumptions fly around that are not correct.

Actually the above is not how I understand Swedish law works. That statement regarding the Softphonics case: "However, what must be understood is that for something to be considered a breach, there must at the very least be a copyright owner claiming their rights have been violated." is strange. PH are required by law to go to great length to assure they do not sell a faulty products. They try to comply by stating in the RE/PH seller contract that no copyright infringement is allowed. And that is fine, but the law will not stop there. They are required to continuously assure they do not sell fault products (copyright infringement = faulty product). Since the Softphonics case is so obvious they MUST take action and go to a great length to ASSURE they do not sell a faulty product.

Since the copyright owner has been identified, Native Instruments, PH should really contact NI and keep this documented in writing, that they did that, and what NI responds with and so on. They could as an alternative just remove/refund all the products in a recall if they prefer. Again the law puts a HIGH burden on the seller. And a smart business documents every step and every contact made as they investigate a faulty product so they can prove in court that they in fact went to a great length to ASSURE the product was not faulty. For electronics for instance, you have to create a "technical file" that includes several 3rd part test reports etc. The law is STRICT when it comes to consumer protection. To identify a product as stolen (i.e. faulty product), they law will not require that you can identify the original owner. It is enough if the circumstances are so strong that there is no doubt it is a faulty product, the law requires that you basically need to prove it was NOT stolen.

If they continue to sell a copyright infringement product, they need to be careful as the Swedish law "Häleri" (Dealing with Stolen Goods) could come into play with up to 6 yrs in prison if the value exceeds about $10 000 (probably closer to 1yr for 1st offenders). This is not a playground where you joke around, not at all... Before they were aware of the infringement they can claim the were exposed to "Bedrägeri" (Fraud) and then the "Häleri" law will not apply, but once they know it changes... The situation now where they removed the faulty product but keep it available for download if you purchased it before, would probably make an interesting case for law scholars and if taken all they way to the "Hösta Domstolen" (supreme court), it might set a precedence.

According to Swedish consumer law you can request a refund, you are legally entitled to it. PH may refuse to pay, but that is a different story, you have the law on your side if you want the product removed and refunded. They are also required to cover your expenses to claim the refund (but not for emotional distress, but costs that you can present as (actual e.g. receipts). Though additional expenses are quite unlikely to exist for anyone in this case, but if it was furniture you could claim the cost for gas to your car if you have to transport the furniture back.

I do not have any Softphonics and I just hope they make the smart thing for their consumers and are able to avoid unnecessary legal battles. A fight that goes to the supreme court can easily cost >$100 000 and suck up an enormous amount of time. It is not fun...I know...
I appreciate that you take so much time to provide a wealth of details about this, this is quite interesting. But a part of your reasoning seems to be based on the fact that PH has sold copies of Softphonics products; I'd argue it's not the case. As mentioned in the terms & conditions (https://www.propellerheads.com/agreemen ... oduct-eula):

2. Copyright. The RE Product is owned by the Developer and/or its suppliers/licensors, and its structure, organization and code are the valuable trade secrets of the Developer and/or its suppliers/licensors.

The end user is not the owner of the product, it's a licensing model, so I'm pretty sure the usual warranties do not apply. Indeed:

4. No warranty. The RE Product is being delivered to you AS IS and the Developer makes no warranty other than as expressly stated. In the event the RE Product is nonfunctional your sole remedy, and Developer ́s sole liability, shall be replacement of the RE Product. APART FROM ABOVE THE DEVELOPER AND ITS SUPPLIERS/LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE RE PRODUCT OR DOCUMENTATION. THE DEVELOPER AND ITS SUPPLIERS/LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.

(Bold is mine) This seems to be the translation of "shit happens, if some dev infringes on copyright because he's a lazy fuck, don't come complaining because we're just as much up shit creek as you are" in legalese. Obviously, this paragraph is followed by the mandatory "may not apply in some jurisdictions" but I suspect those jurisdictions are North Korea and South Burma.

Given this model, I'm pretty sure the seller is the dev, and PH is only a licensor. So, everything you said above is correct, except the guilty party is Softphonics, not PH. The question raised in this thread then becomes: will Softphonics refund everybody? And it's pretty obvious he won't.

Regarding your arguments that PH have to ensure that none of their third parties are committing copyright infrigement, I'd argue that it's pretty much limited to asking them "have you committed copyright infrigement", and going with whatever answer is provided. They don't have investigative authority, they can't issue warrants to search the dev's premices for proofs, etc. It's all declarative, as it is in almost all instances when dealing with third parties. In this regard, they're safe, especially since they've removed all Softphonics products from the Shop as soon as they were made aware of the fraud. I don't think there's anything more they could have done.

The only remaining problem that you raise is that the devices are still available to download for those who have bought them, which puts them at risk of "Häleri" (I'll be honest, I'd never heard about that before). But you do specify that it would be the case only if they continued to sell those devices, which they don't; furthermore, they have a contract with the users stating that they will ensure continued access to products they bought. Well, let's be frank, if at that point you say that it could be argued in some Supreme Court that such a disposition should be invalidated by the fraudulent nature of the goods... I'd certainly agree, but still wouldn't bet that some smart lawyer wouldn't be able to sway the Court by arguing that the sale itself is fraudulent, but maintaining access to a "digital safe" that belongs, in fine, to the user, isn't.

In conclusion, Your Honor, I'll ask that my client, Propellerhead, be acquitted, and that the guy who did the deed be drawn and quartered. Also tar and feathers. Thank you.

Edit: I realize that I forgot to state my point, which is... The only thing that can be obtained at this point, if people start complaining, is that those devices will be deleted from everyone's accounts. There will be no refunds, no exchanges, nothing. Those who have alternative solutions, great for them! The rest risk having something that they paid for be deleted forever. So, I'd say it's a dangerous game to wave the pitchforks now...

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diminished
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Post 12 Jul 2019

Boombastix wrote:
12 Jul 2019
QVprod wrote:
12 Jul 2019
If NI never made a copyright claim (according to this they haven't viewtopic.php?f=7&t=7507209&hilit=copyright), then they have no reason to take any further action and refunding every person who bought any Softphonics products would be a financial loss. As it is, they're simply allowing the people who payed for a product to continue to have access to it, I wouldn't equate that with piracy.
I'm sorry if anyone thinks I put to much effort into this, but I just want to avoid that guesses/assumptions fly around that are not correct.

Actually the above is not how I understand Swedish law works. That statement regarding the Softphonics case: "However, what must be understood is that for something to be considered a breach, there must at the very least be a copyright owner claiming their rights have been violated." is strange. PH are required by law to go to great length to assure they do not sell a faulty products. They try to comply by stating in the RE/PH seller contract that no copyright infringement is allowed. And that is fine, but the law will not stop there. They are required to continuously assure they do not sell fault products (copyright infringement = faulty product). Since the Softphonics case is so obvious they MUST take action and go to a great length to ASSURE they do not sell a faulty product.

Since the copyright owner has been identified, Native Instruments, PH should really contact NI and keep this documented in writing, that they did that, and what NI responds with and so on. They could as an alternative just remove/refund all the products in a recall if they prefer. Again the law puts a HIGH burden on the seller. And a smart business documents every step and every contact made as they investigate a faulty product so they can prove in court that they in fact went to a great length to ASSURE the product was not faulty. For electronics for instance, you have to create a "technical file" that includes several 3rd part test reports etc. The law is STRICT when it comes to consumer protection. To identify a product as stolen (i.e. faulty product), they law will not require that you can identify the original owner. It is enough if the circumstances are so strong that there is no doubt it is a faulty product, the law requires that you basically need to prove it was NOT stolen.

If they continue to sell a copyright infringement product, they need to be careful as the Swedish law "Häleri" (Dealing with Stolen Goods) could come into play with up to 6 yrs in prison if the value exceeds about $10 000 (probably closer to 1yr for 1st offenders). This is not a playground where you joke around, not at all... Before they were aware of the infringement they can claim the were exposed to "Bedrägeri" (Fraud) and then the "Häleri" law will not apply, but once they know it changes... The situation now where they removed the faulty product but keep it available for download if you purchased it before, would probably make an interesting case for law scholars and if taken all they way to the "Hösta Domstolen" (supreme court), it might set a precedence.

According to Swedish consumer law you can request a refund, you are legally entitled to it. PH may refuse to pay, but that is a different story, you have the law on your side if you want the product removed and refunded. They are also required to cover your expenses to claim the refund (but not for emotional distress, but costs that you can present as (actual e.g. receipts). Though additional expenses are quite unlikely to exist for anyone in this case, but if it was furniture you could claim the cost for gas to your car if you have to transport the furniture back.

I do not have any Softphonics and I just hope they make the smart thing for their consumers and are able to avoid unnecessary legal battles. A fight that goes to the supreme court can easily cost >$100 000 and suck up an enormous amount of time. It is not fun...I know...
Thank you for writing this. I'll get straight to the point: While everyone has made good points, I couldn't care less about the opinions of RT members on the matter - they (PH) absolutely NEED to release an official statement on the matter and should not hide under their contracts and agreements they have with vendors!
The "An update on copyright" thread is a joke. It basically says that they won't do a thing until NI (in the softphonics case) claims copyright.
I can imagine that there's some sort of gentlemen's agreement between the two (PH & NI) or in general: that they won't bother with such, in comparison, rather small violations. Of course, before any lawyers will get involved, they talk to each other. Make some kind of deal. Maybe that has already happened.
But I also think that we as customers should not be left in the dark. Just look at us, more than a year later the same kind of shit now with another vendor.
I'm quite sick of the non-proactive, avoidance-kind-of PR strategy.
Same with other matters like the transfer of REs associated with an account. That's another topic, but the strategy is the same: no talk on the matter until legally necessary. Ugh.
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Boombastix
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Post 13 Jul 2019

Thanks for your thoughts. I cut out some pieces and give some more comments. Need to do other stuff now this weekend and it is time to go grab a pizza and beer for tonight!
WongoTheSane wrote:
12 Jul 2019
4. No warranty. The RE Product is being delivered to you AS IS and the Developer makes no warranty other than as expressly stated. In the event the RE Product is nonfunctional your sole remedy, and Developer ́s sole liability, shall be replacement of the RE Product. APART FROM ABOVE THE DEVELOPER AND ITS SUPPLIERS/LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE RE PRODUCT OR DOCUMENTATION. THE DEVELOPER AND ITS SUPPLIERS/LICENSORS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
Except that the Swedish consumer law cannot be negotiated away or changed. It's like inheritance law, you have no say about the law and your opinion or written agreements cannot change it. It is a pretty solid consumer protection. However, they do say they see themselves responsible to replace the RE product (I made it red colored).
WongoTheSane wrote:
12 Jul 2019
Given this model, I'm pretty sure the seller is the dev, and PH is only a licensor. So, everything you said above is correct, except the guilty party is Softphonics, not PH.
Except that, according to the Swedish consumer law the Seller has the responsibility, not the producer. It is very clear, and also in the case of internet sales.
WongoTheSane wrote:
12 Jul 2019
Regarding your arguments that PH have to ensure that none of their third parties are committing copyright infrigement... .... I don't think there's anything more they could have done.
Well, the refunds have not been processed, so there is one thing more they technically can do. Just like IKEA would probably refund a baby chair that has been found dangerous (faulty product).
WongoTheSane wrote:
12 Jul 2019
The only remaining problem that you raise is that the devices are still available to download for those who have bought them, which puts them at risk of "Häleri" (I'll be honest, I'd never heard about that before). But you do specify that it would be the case only if they continued to sell those devices, which they don't;
PH is still selling Zampled, and now that it is in doubt they need to look at it maybe remove Zampled to to avoid the potential issue of "selling stolen gods".
WongoTheSane wrote:
12 Jul 2019
furthermore, they have a contract with the users stating that they will ensure continued access to products they bought.
They replaced Line 6 (for a different reason) so removing a product has happened, so it is their intent to ensure access, and that is great (but I guess we need to see it as access to a function, e.g. guitar amp). But if a product is found faulty they can replace, repair, or refund. The Seller has those options in the law (within certain limitations).
WongoTheSane wrote:
12 Jul 2019
There will be no refunds, no exchanges, nothing. Those who have alternative solutions, great for them! The rest risk having something that they paid for be deleted forever. So, I'd say it's a dangerous game to wave the pitchforks now...
Perhaps that is the case, but PH would, if taking that position, have to weight that against the loss of goodwill in this era of YouTube/Twitter/Facebook, etc. Some small Brick'n'Mortar shops have gone under after acting badly and being called out on Yelp and other social media. My point is you do have the consumer law on your side if you want to get rid of it and get a refund. I have no idea how PH will behave, I cannot make such prediction. I just hope they solve it amicably for those who request it.
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QVprod
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Post 13 Jul 2019

diminished wrote:
12 Jul 2019
Thank you for writing this. I'll get straight to the point: While everyone has made good points, I couldn't care less about the opinions of RT members on the matter - they (PH) absolutely NEED to release an official statement on the matter and should not hide under their contracts and agreements they have with vendors!
The "An update on copyright" thread is a joke. It basically says that they won't do a thing until NI (in the softphonics case) claims copyright.
I can imagine that there's some sort of gentlemen's agreement between the two (PH & NI) or in general: that they won't bother with such, in comparison, rather small violations. Of course, before any lawyers will get involved, they talk to each other. Make some kind of deal. Maybe that has already happened.
But I also think that we as customers should not be left in the dark. Just look at us, more than a year later the same kind of shit now with another vendor.
I'm quite sick of the non-proactive, avoidance-kind-of PR strategy.
Same with other matters like the transfer of REs associated with an account. That's another topic, but the strategy is the same: no talk on the matter until legally necessary. Ugh.
Boombastix wrote:
13 Jul 2019
WongoTheSane wrote:
12 Jul 2019
The only remaining problem that you raise is that the devices are still available to download for those who have bought them, which puts them at risk of "Häleri" (I'll be honest, I'd never heard about that before). But you do specify that it would be the case only if they continued to sell those devices, which they don't;
PH is still selling Zampled, and now that it is in doubt they need to look at it maybe remove Zampled to to avoid the potential issue of "selling stolen gods".

WongoTheSane wrote:
12 Jul 2019
There will be no refunds, no exchanges, nothing. Those who have alternative solutions, great for them! The rest risk having something that they paid for be deleted forever. So, I'd say it's a dangerous game to wave the pitchforks now...
Perhaps that is the case, but PH would, if taking that position, have to weight that against the loss of goodwill in this era of YouTube/Twitter/Facebook, etc. Some small Brick'n'Mortar shops have gone under after acting badly and being called out on Yelp and other social media. My point is you do have the consumer law on your side if you want to get rid of it and get a refund. I have no idea how PH will behave, I cannot make such prediction. I just hope they solve it amicably for those who request it.
The thing here is, I think there's an overestimation of the scope of how large this incident is. It's not large at all. The Softphonics video is unlisted with less than 3k views. That means very few people even know about it outside of this forum. Making an official statement on the website would be making a mountain out of a molehill and bring a lot of unnecessary negative PR. That's why the statement was only posted here. Still searchable on the internet, but we're the only ones talking about it so that's who they addressed. The product no longer being sold in the shop is why this is a non issue. If here was any legal action to be taken it's probably been handled already, keep in mind Softphonics was a one man operation and not a big company. Remember that Props only get a portion of shop sales and seeing as they're not the owners of the refills, they're not liable. The developer is which means refunds just aren't going to happen. If it were one of their own products, it would be a different story. So yes people who payed for the product still having access to use what they paid for is the best solution. Remember, the choice of not using it is a personal one, regardless of whether or not using it is considered moral.

As far as Zampled, The only evidence of fraud presented has been posted in this thread. It's still speculation at this point until it can be proven where samples were stolen from. As far as we know, it could just be a very poorly designed refill. As they're also a small developer, At most the same thing will happen with them as did with Softphonics. Lawyers and court fees are generally too expensive to really bother with for these minuscule things. And besides, while I get people want to support refill developers, I would hope people are aware of the considerably better options available for these kinds of instruments as VSTs and even as RE to some degree. No one should be buying orchestral string refills in 2019 and I doubt that many people are at this point.

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Post 13 Jul 2019

QVprod wrote:
13 Jul 2019

The thing here is, I think there's an overestimation of the scope of how large this incident is. It's not large at all. The Softphonics video is unlisted with less than 3k views. That means very few people even know about it outside of this forum. Making an official statement on the website would be making a mountain out of a molehill and bring a lot of unnecessary negative PR. That's why the statement was only posted here. Still searchable on the internet, but we're the only ones talking about it so that's who they addressed. The product no longer being sold in the shop is why this is a non issue. If here was any legal action to be taken it's probably been handled already, keep in mind Softphonics was a one man operation and not a big company. Remember that Props only get a portion of shop sales and seeing as they're not the owners of the refills, they're not liable. The developer is which means refunds just aren't going to happen. If it were one of their own products, it would be a different story. So yes people who payed for the product still having access to use what they paid for is the best solution. Remember, the choice of not using it is a personal one, regardless of whether or not using it is considered moral.
You put that better than I could.
Boombastix wrote:
WongoTheSane wrote:
12 Jul 2019
Given this model, I'm pretty sure the seller is the dev, and PH is only a licensor. So, everything you said above is correct, except the guilty party is Softphonics, not PH.
Except that, according to the Swedish consumer law the Seller has the responsibility, not the producer. It is very clear, and also in the case of internet sales.
That's my point! The dev IS the seller, not PH, who's only connecting sellers and buyers, much like ebay. To my knowledge, the only responsability ebay has only ever assumed when something fishy happened is to remove the product, not refund it or anything. I mean, they probably do the refunding when possible, but by taking the money from the seller's account, not their own pockets. And regarding Zampled, I agree with QV here too: there is no formal proof yet that it's been stolen, so until the source of the samples can be confirmed, they shouldn't do anything about it. Finally, note that Line 6 wasn't a Rack Extension, it was part of the program itself.

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moneykube
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Post 13 Jul 2019

keeps going and going... damn energizer bunny... I'm cracking up :lol: :lol: :lol: :lol:
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Boombastix
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Post 15 Jul 2019

WongoTheSane wrote:
13 Jul 2019
Boombastix wrote: Except that, according to the Swedish consumer law the Seller has the responsibility, not the producer. It is very clear, and also in the case of internet sales.
That's my point! The dev IS the seller, not PH, who's only connecting sellers and buyers, much like ebay.
Sorry, I was unclear. In the eye of the law, PH is the Seller, so they do carry the responsibility for the product sold (the transaction is between PH and consumer). There is no doubt about that in law.
Anyhow, it was an interesting discussion and I think we have exhausted the finer details about copyright and how the law can apply in this slightly unusual case.
Let's just hope that, PH and us RE buyers, as we move forward, do not have to experience future fraudsters.
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howtobecalm
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Post 08 Feb 2020

just sent livingston studios a message see what they say , i was almost tempted to buy it once

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