http://www.osborneclarke.com/connected-insights/publications/despite-usedsoft-german-court-rules-valve-may-prohibit-steam-account-transfers/

(Emphasis mine)

The judges’ comments at the oral hearing held a few days before the verdict transpired do indicate that they do not consider the doctrine of exhaustion to be applicable to digitally distributed computer games at all. However, this is not a direct contradiction of the UsedSoft decision.

...

In fact, in UsedSoft, the CJEU mentions a possible discrepancy between the provisions on exhaustion in the general copyright directive and the computer software directive that may very well mean that exhaustion for intangible copies cannot apply to anything but computer software. And in a very recent case involving pirated copies of video games, the CJEU, holding that such games, because of their audiovisual components, were "not only computer software", considered them protected under the "general" copyright directive 2001/29/EC.

...

As mentioned in the article (I don't want to copy and paste too much of it ;) ) there is another ongoing case that might in the future "clarify" the copyright status of games in Europe, but I remember reading elsewhere that it is not supposed to be judged before 2017 (but I don't remember where I read that but I suppose you can find it on Google)

Thanks. OK, at least it is a open case & the core portion of the games, the software is owned, while not the data/artwork. While the law seems to be here too slow to be helpful, GOG as publisher could produce precedent by not following the customer unfriendly "licensed, not owned" idea .

Infact, I don't care that much for the reselling right which was discussed here, but want beside that all personal rights (beside, obviously, redistribution, attribution) to do with my software what I want: I'm concerned by the missing rights to "merge, modify, disassemble, reverse engineer, debug, etc".

It's not an elastic definition, their stated purpose for it is to control how people use the software.

Now you're being obtuse. They were promoting modding previously, and now they're apparently enforcing the rule. To suggest that it was technically in there, but not enforced, is the same thing as technically in there and we're now enforcing it is asinine. There was a change here regardless of whether you care to admit it. Previously, it was in there with a nudge nudge that they wouldn't prevent people from doing things like that.

That's mostly because you're being deliberately obtuse. This is a pretty huge change, the fact that you're able to completely ignore the change isn't really my fault and I've already wasted enough of my time arguing with you.

Fact is that this is a very big deal and it definitely does represent a change.

I've already explained this. What makes it unenforceable is that they already have a EULA that applies to people here. They don't get to change the EULA to benefit them without offering people the opportunity to opt out. The provisions like the tampering clause aren't enforceable as they waived any right to enforce it by not enforcing it for so many years.

What's more, they have had mod spotlights as I recall, which are pretty clear inducement to "violate" their terms.
TeT is too much of a professional to tell us why he left, but I do wonder if it had anything to do with the things they were asking him to say. TeT is a marketing guy, but he did seem to have a genuine love of games and belief in the company. I wonder if them asking him to clean up their mess whenever they'd sell us out became too much for him professionally and started to risk his ability to get jobs in the future because of messes that really couldn't be cleaned up.

Now you are just making things up.

You may not transfer, distribute, rent, sub-license, or lease the Program or documentation, except as provided herein; alter, modify, or adapt the Program or documentation, or portions thereof including, but not limited to, translation, decompiling or disassembling. You agree not to modify or attempt to reverse engineer, decompile, or disassemble the Program, except and only to the extent that such activity is expressly permitted under applicable law notwithstanding this limitation. All rights not expressly granted under this Agreement are reserved by Company.

Where exactly is the "nudge nudge" you mention ? (And before you say it's a recent change it's a EULA from a 2008 installer)

And where did they ever "enforce" anything, where did they removed a mod, a fan patch, ban or "prevent" anybody from talking or posting links to mods ?

They have those clauses since the beginning and yet always promote mods event doing a mods spotlight every N months. (Last one was in November)

And what is this "huge" change exactly ?

The biggest change in the "do not tamper" games section of the EULA is that now there is a "please" :)

Except it's not really an "explanation", but some weird logic.

You can "opt out"; just stop using their service, that's easy, and unlike Steam or other you can still keep all the games you previously bought.

In the real world companies changes their EULA all the time for their software, website, services, etc... you can opt out, just stop using the website / service or keep the old version of the software. GoG already changed it's ToS several times in the past, you just never cared enough to notice it.

Which doesn't matter at all, EULA are not "criminal laws", you are not going to have the SWAT raid your home because you download a mod, as long as GoG and/or the rights owner doesn't care you don't risk anything.

Like said multiple times already : Skyrm has exactly the same term in it's EULA, and yet Bethesda promote Mods usage ; Steam has exactly the same term in it's EULA, and yet the promote the usage of Mods too and even created Steam Workshop to make their usage easier. NexusMods as yet to be closed down even thought they host Mods for tons of games who have a similar EULA "forbidding" it too. Heck even EA doesn't do anything against the thousands of Mods that exists for The Sims.

It's really irrelevant. Even if your assumption is correct (that old EULA is as much restricting everything as the new TOS), it's all the more the reason to fix both games EULAs and TOS to address it. I.e. in areas which are fixable and under GOG's control.

This is from my perspective not acceptable. I want to be taken serious by GOG (or Valve) with honest EULAs and not just "tolerated" (which could be removed anytime) with usages of my product which are overall completely inside the law (beside reselling, the rest of customer rights "to-do-whatever-I-want-with-my-product" I consider still well defended in Europe).

Asking for them to change is one thing (Even thought game's ones are outside GoG control), getting angry and calling it a "change" even thought they were the same before (as far as games are concerned at least) and pretending that it will prevent mods, patch or whatever is a totally different one.

Since it's now all lumped together, GOG can clearly separate the two (or separate wording in them). I.e. one part will cover games or whatever content owned by the publisher, and another separate part can cover all that GOG own. This way separate wording can be used when publishers have some specific demands.

I've got better things to do with my time than to argue with you. But, you're a damn fool if you think the words on the contract are the contract. There's interpretation that goes into knowing what the words on the page mean. And considering the various mod spotlights that GOG has had over the years, it's pretty clear that that portion of the contract doesn't mean what you're claiming it means.

If you're really this ignorant on contract law, you should just shut up. I can't claim to be an expert, but I did spend an entire month of my life on jury duty when these types of issues came up and saw first hand that a contract isn't the words on the paper, the words on the paper never quite reflect what the parties mean, so you go to court and settle things out as to what exactly the contract meant. And it's never obvious.

EDIT: BTW https://duckduckgo.com/?q=site%3Agog.com+mod+spot+light

That doesn't sound like a company that intended to ban people from modifying the games.

Did you actually read what you are answering to ? because I have big doubts.

You are the one who said that "before" they were promoting mods and that, because of the new ToS, they were "now" trying to prevent it, enforcing it, whatever, and that's that was a big change.

My point was that it's totally silly to say that because the old EULA for games also contained exactly the same "do not decompile, disassemble, translate, etc...", that it did contain this since the very begining of GoG and that they never did anything against mods and that on the opposite they are still today promoting them.

My other point was that most other games (except maybe some "open source"/"free"/"Indy" ones) and even gaming services like Steam have similar clauses in their EULA including several which are modded to death and yet their respective right owners never did anything agains mods either.

so basically you are saying that GOG and game publishers are totally ok with everybody violating that part of the license agreement. Please explain again why should we have this in our agreement when everybody is so happy ignoring it?

If you were to actually follow that paragraph, it would indeed prevent a lot of mods(not all of them though). The fact that that doesn't actually happen in practice, only highlights the absurdity of that paragraph.

If you want gamers to actually give a damn about the license under which you distribute the games, it would be a good start to don't put anything in there that you don't intend to follow( and have never followed in the past).
If you do so, you are just training the now already prevalent reflex of "uh, legal stuff -> don't care -> clicks on accept".
Because why should I care? The words in it don't matter anyway.

Yes, and it's nothing new, there are plenty of EULA clause that are never enforced, either because they don't care, or because it would be a total PR suicide to do so, or because of fair use, etc...

I doubt when the "do not tamper" clauses were written anybody knew nor cared about mods.

Because like most other things in the EULA they are only here to try to "cover their ass"; be it GoG, the games right owners, others. It's not there because they plan to enforce them every time there is some slight "violation", it's there to give them the "possibility" to enforce them if they ever need or want to.

You have to remember that copyright laws are not the same everywhere, and more important than that they are not "interpreted" the same everywhere and by every judge (e.g. the German judges that considered that DD video games were not covered by the "right to re-sell your license" judgment because they were not just "computer software").

So usually the EULA are as broad as possible to try to cover all possible possibilities of all possible laws and interpretation because they are afraid that otherwise peoples might find loopholes/alternate interpretations that could be detrimental to them.

That's also why it's mentioned "except and only to the extent that such activity is expressly permitted under applicable law notwithstanding this limitation" because those who wrote those EULA perfectly know that several clauses are unenforceable (or even sometime "illegal" ) under certain jurisdiction, but it doesn't mean that they never will be in others nor that having them won't protect them against some creative interpretations.

Like I said in an earlier post, IMHO licenses/EULA are the wrong target, they are the symptom rather than the problem.

The real problem for me is copyright laws, the fact that most of them were written before digital media, and especially the lack or a clear/common definition of what is fair use, its scope, etc..

If you change GoG EULA/TOS it would be mostly symbolic, it most likely won't have any impact on other distributor EULAs like Steam, Origin, and have no impact on most games, nor will it have real impact on mods, fan patch, etc.... Not to mention that it might be another huge roadblock for GoG to acquire new games (I am talking of course about the games EULA).

But if you manage to change the laws (given of course that said laws are changed for the better and not for the worse) on the other side then all the EULA will be automatically impacted. And either rights owners will have to rewrite them to reflect the law, or at least it will make said clauses meaningless even if they are still present.

Then there is no reason to have those parts, which you should agree to.

It's not that easy... that's what I said in the rest of the post...