Not sarcasm: the US Government has already dealt all American cloud companies an enormous kick in the crotch with the spying, secret letters, recruiting agents within firms, etc. Nobody outside of the US with half a brain would trust an American company today.
Further legal uncertainty is just another bullet in that corpse.
What Mike meant to say (and I mean this in the least sarcastic way possible) is this:
If there's some sort of silver lining to all of this, it's at least the acknowledgement that the NSA is willing to tell a court that it really does have a minimization process to not hang onto information it's not supposed to have, and that it's not immediately easy to turn off the process of getting rid of that data.
The NSA's track record, and that of its "overseers", suggests that there might be a gap between what it says is true and what is actually true. Just a small gap. Like a teeny-tiny one. Maybe 300 million "targets", give or take. Little gap, I swear.
It's also about making the NSA work a little harder when they man-in-the-middle techdirt.com as part of some enormous sweep of malcontents and ne'er-do-gooders. It's always fun to make their guys go and hack pieces of Chrome to kill the cert-pinning trick Google came up with.
You gotta get that DMCA shirt back in stock, though. ;)
The district court judge is constrained. If she rules in violation of that clear precedent, the appeal will be fought over the wrong issue: whether it was proper for her to ignore case law as dictated by SCOTUS.
The order must be appealed up the chain to SCOTUS so they can rule on the merits of the case and overturn Smith. Them's the rules.
If it does get to Roberts and he is the Chief Asshole like you say (and I at least partially agree), then we can say that part of the system is broken.
1) Ubisoft knew the product would under-perform on AMD hardware of a similar class. They chose to release it this way.
2) People buying the game with such hardware will be disappointed. A large number of them will understand point #1.
3) Such folks will become reluctant to buy further Ubisoft games.
The normal pain feedback cycle applies here, unlike in many other non-competitive situations (broadband, anything related to movies/records, etc). If Ubisoft can make more money pissing off 40% of their target market, great. If not, they'll work harder to make sure the performs well on both chipsets.
Laying any blame at nVidia's feet (or AMD's) is silly. Ubisoft makes the call, Ubisoft reaps the results. They don't have a monopoly on the market and Watch Dogs isn't big enough to make people switch display adapters.
Nah, they'll distinguish from Galoob with something too easily. Maybe non-literal elements or the "choreography" that the whole system comprises, or that is just part of the system. Galoob is too literal and specific to skipping content and a single-machine model.
(yes, I am the first two letters in MDY Industries)
Actually, the derivative work claim is quite a bit different than the usual "you licensed it, you don't own it, therefore these copies are infringing" kind of logic that was employed in the past.
In this case, the EULA and ToU are only being leveraged directly for the contract claims: breach, interference, etc. There is no more of the magical connection between copyright and the EULA.
The copyright claims are made without the EULA: derivative work and direct infringement during reversing. They may or may not be winners, but it's at least a break from the prior methods of creating copyright infringement from thin air by writing it into a contract.
If it ever gets argued on the merits, the defendants will have to somehow get past Midway v. Arctic on the derivative work issue and I don't see how they're going to do that.