Tuesday, July 15, 2008

The Strange Copyright World of Warcraft

The trial court has handed down its summary judgment opinion in MDY Industries, LLC v. Blizzard Entertainment, Inc., involving the multiplayer online role-playing game "World of Warcraft" and a bot program known as WowGlider, created by declaratory judgment plaintiff. WowGlider plays WoW while the player is away from his or her computer, thereby permitting the player to advance more quickly than he or she otherwise could. WoW's owners didn't like this, claiming it violated terms of use and the end user license. Blizzard found out about the activity through its "Warden" spyware program, discussed here in Wikipedia, and in the opinion at pages 17-20. Blizzard took a page out of the Godfather by sending representatives to MDY owner Michael Donnnelly's home and telling him they would file suit the next day against MDY and Donnelly unless he agreed to stop selling the program. About 100,000 copies of the program have been sold, as compared to the 10 million active players of WoW. Not intimidated, Donnelly filed a declaratory judgment action later that day. Blizzard filed a counterclaim, charging contributory infringement and vicarious liability.

The court held for Blizzard on the copyright claims (No. CV-06-2555-PHX-DGC (David Campbell, Judge, July 14, 2008)), available here. On the DMCA claims, the court granted MDY's motion that the Warden spyware did not qualify as controlling access within the meaning of 17 USC 1201(a)(2), but denied summary judgment on Blizzard's 1201(b)(1) claim that the spyware was a technological protection measure: MDY argued that the code from the game client software was not written to RAM after the user makes it through the spyware scan; the court found there was a factual dispute "with respect to the extent to which Blizzard's protective software protects the copying of software code to RAM ... ."

The court's holding on the copyright claims compares very unfavorably to its handling of the DMCA claims, permitting a chilling extension of control by copyright owners of software over copies of programs they have sold. The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

28 comments:

Mike Carlson said...

Greetings. The Vernor citation is 2008 WL 2199682.

Noah said...

I understand your point about Vernor, but I didn't see the software in Vernor as the same kind of software in WoW. In Vernor, the software was autocad - a tool used in isolation by the customer. But in WoW, the software is only a gateway to a more extensive relationship
between Blizzard and the customer.

Blizzard maintains the world servers, develops more content, and provides a platform for different consumers to participate in a "single location." In return, customers
pay a monthly fee in order to develop and maintain this relationship. The purchase of the software is a "one off" price to gain entry: a ticket to a carnival, so to speak, where customers then must purchase
a "wristband" in order to ride the rides.

Thus, Vernor seems more akin to a traditional property issue - the dominionover a discrete and static interest is being contested. But in WoW, the "work" is ongoing and being ever developed. What is being sold to the consumer is the right to "play" in this "virtual playground" that Blizzard (1) is constantly designing and changing and (2) must financially support and administer in order to maintain its existence (unlike autodesk, which we would still have if the creator folded).

In maintaining this interactive environment, where an intrinsic part of the work is the social interaction by players, could the use of WoWGlider be considered an unauthorized derivative work because the software, as integrated with the game environment, undermines its
integrity? I understand this wasn't argued - and may very well be a better question of joint works, because Blizzard requests player interaction - but does this change the copyright analysis for you at all? Certainly, this seems much more like a contract problem than a copyright problem to me, but I was just thinking about it in the terms of what control the author of unusual types of "interactive works" may
retain.

In addition, do you see this case as reflecting a broader problem of
the courts looking at traditional property or contract law problems,
but because "technology" is involved, mislabeling them as copyright questions instead? It seems to me as if there is a real problem with courts confusing "intangible" property with "intellectual" property
(ethical disclaimer - I am currently drafting my note on the topic), and that many of the larger threats to a sound and balanced copyright regime are the result of courts and scholars failing to understand why
we have an "I" before IP.

In other words, the courts are using copyright law to resolve problems of technological change that should be discussed under the rubric of stodgy old property law, and that the important function of copyright (striking the balance between users and creators to promote innovative ideas) is being lost along the way.

Anonymous said...

Well said. I hope there are more of you that understand the legal ramifications and can bring to light this issue.

William Patry said...

Hi Noah, I appreciate your point, and that point also arose decades ago when video games were hardwired into consoles, and the issue was whether the work was sufficiently fixed and whether the player was a joint author. In WoW, the issue arises not for the interactive elements but only the "static" material sold in stores (or online). For that material, I think there is a sale not a license. Indeed for the interactive stuff, I imagine there is no fixation and hence no work.

mdm-adph said...

I play WoW, and absolutely hate the presence of something like the Glider (for one thing, it screws up the game economy by flooding the market with too many goods and gold), but I don't like this ruling one bit. I'd never use something like the Glider, but I wouldn't sue to get it to stop -- if Blizzard wanted to, they could just tweak their detection and start banning accounts that used it, but then, heavens forbid, they might lose a bit of revenue.

Vincent said...

The main difficulty many of us have in assessing a decision like this is understanding the nature of the injury that the copyright holder is claiming. Is it that bot programs distort and diminish the quality of play, foreclosing the copyright owner from building the kind of collaborative online community that is its bread and butter? Is it that a bot program will eat up bandwidth, slowing play for the non-bots? Is it that bot programs confer a competitive advantage that discourages people from using the program unless they purchase the add-on bot program? In effect, does the bot program raise the cost of participating in the online gaming? Some of these seem like legitimate problems, though copyright law may not be the best tool to deal with them. State unfair competition law is out there, and is pretty flexible in places like California.

Scott said...

Even if one was to accept the "license not sold" doctrine, I have two questions:

1) If I purchase software Z from X (including indirectly, through a retail channel), and I "agree" to a software license with X--and I meet the initial conditions conditions imposed by X to legitimately acquire a copy of Z--and the subsequently breach the license agreement--at what point does X have a copyright infringement claim against me, as opposed to a mere breach of contract claim?

While analogies are often incorrect when applied to law, one analogy does suggest itself. If I rent a car from Hertz, and then breach the rental agreement by e.g. speeding with the car (many rental cars now come with GPS systems which monitor and report such activity)--Hertz can accuse me of breaching the agreement, and levy a fine as indicated in the contract. They cannot, however, accuse me of stealing the car, simply based on the theory that by breaching the terms of access to said car--the language of the rental agreement--I am no longer entitled to possession; and thus the fact that I still have the keys in my hand regardless means I am now guilty of theft.

2) There seems to be an interesting, and potentially dangerous, extension to vicarious and/or contributory liability; and/or a pernicious extension to the anti-circumvention language in the DCMA. The DCMA, of course, prohibits development of "technical measures" whose purpose is to defeat an access control for a copyrighted work--I'm grossly oversimplifying the point, of course. While the Court rejected the explicit DCMA claim (Warden is not a "technological measure" sufficient to forclose use of the WowGlider software on DCMA grounds)--the court seems to be holding nonetheless that a devleopment of a computer program, whose only use is in violation of some entity's software license, is itself grounds for contributory copyright infringement. If that were to become law, then who needs the anti-circumvention language of the DCMA? This ruling, it seems, would subsume the nastiest parts of the DCMA (for consumers) and make them far worse!

This case screams "appeal". And I certainly hope that should the appellate court entertain amici, that you would be beating down the courthouse door to gently explain just why this ruling is dangrous rubbish. :)

Anonymous said...

Blizzard claims they have lost money due to MDY Industries; however, this needs to be proven false.

When a player uses WowGlider and is caught by Blizzard, the account is permanently banned. The user then goes out, and purchases another account ($40 including the new expansion). Many "botters", as they're called, have lost multiple accounts, and therefore buy many more accounts in the hopes of beating the statistics of being caught. This has given Blizzard Entertainment an extraordinary amount of revenue that would not have been earned had a person just bought 1 (one) account a few years ago and played it until the present.

Blizzard claims to have around 10 million active accounts. What they fail to mention is that many users own multiple accounts. While its true there are 10 million accounts, the amount of actual players is a lot less.

Blizzard should thank MDY Industries for their WowGlider. As a player, I would have quit playing WoW years ago, but Glider has given me the ability to do things I would not have been able to do because I work 50-60 hours a week, have a wife and a child.

I personally have purchased more than 5 WoW accounts at $40 each, plus the $15 monthly service fee for each of those 5.

Blizzard owes a lot of their financial success to MDY Industries.

Scott said...

It would be a bizarre holding, I would think, if a court were to determine that a user who plays a video game (online or otherwise) creates a "derived work", and that one who does so in violation of some license agreement is guilty of copyright infringement because the derived work was unauthorized. (That doesn't seem to be the issue in the instant case).

As William indicates, fixity would be an issue. Although many modern games are perfectly capable of transcribing and replaying a user's session, thus perhaps "fixing" the work after all; users can also capture gameplay sessions with video capture software. While you might not be able to comment on this aspect due to your present employment, William, it is worth noting that Youtube contains many uploaded videos which are "recorded" videogame sessions. Has any game vendor contacted Youtube with a takedown notice for such?

And one other question along these lines--there are many videogame tournaments and such where games are played for a paying audience. Can this be construed as violating the game vendor's public performance right?

Ugh. :)

Bruce Boyden said...

Decision available here.

Anonymous said...

Of the 10,000,000 active accounts, I would be surprised to find that it wasn't a fact that most of the 100,000 WoWGlider users don't at least have two active accounts each. I have 8 personally, and this is not even excessive - there are people with many more.

Once an account hits 70, some Glider users then sell the account and buy another one. The account is then taken over by whoever bought it, and the cycle repeats. This also factors into the 10,000,000 active accounts; many would probably not still be active if the 'max level' accounts weren't affordable and readily available.

If Blizzard manages to shut down Glider, it will be something to see. The prices for those 'top level' characters will probably go up, which would affect the percentage of players that only subscribe to the service because they can buy them at somewhat of a fixed rate. I know of a few people who 'multi box' and have bought 5 characters at a time, along with the subscriptions to play them in game.

They will also lose those of us who only remain in the game because tools like this exist. We can spend time with family and friends while the bot does the monotonous and boring things, so when we do play it for relaxation purposes we can do what we find appealing and actually get some enjoyment from it. It is not enjoyable to kill stuff for hours on end just to 'keep up' to those who have time to play all day long, especially when those who do play all day long are likely a very small percentage of the virtual worlds' population.

When reading this, you may see 100,000 to 10,000,000 as 'good for them, getting rid of those little buggers'; but do see through the BS and realize that they wouldn't be sustaining 10,000,000 active accounts without such a tool. The RAM copying cited is akin to considering family photos copyright violation because you were standing in front of the television when the shot was taken, can they go after camera companies - and what then? Perhaps a registry of who purchased cameras, so they could come into your home and sift through your photos to ensure you aren't breaching the license agreement that came with the camera.

This whole case is just getting more ridiculous as time goes on, and it's rather disturbing to see them not get laughed out of court.

rumpole said...

There is a difference between license liability and contract liability. Whether a license exists should be a separate question from whether or not a contract exists, but there's no way to stop the "cheating", however, without infringement liability b/c of the privity problem. And the unauthorized activity could take place on any interactive service that requires a software client, not just an entertainment one.

Anonymous said...

It is my beliefe the american way of life as we know it has died.
The decision made is unacceptable
in america it appears law is a practice of money now?
Whoever has the most wins thats the only reason i could forsee resulting in this conclusion.

Chris said...

Scott --

In regard to your question about Copyright Infringement v. Breach of Contract, this is a particularly heavy question and turns largely on what the license actually says, although courts have tried to find ways around this. Consider, for example, the following two provisions:

1. We grant you a license to use the software solely on Tuesdays.

2. We grant you a license to use the software. You agree to use the software only on Tuesdays.

In theory, at least, breaking #1 gives you copyright remedies (i.e. statutory damages) for using the work outside the license. In theory, #2 only gives contract remedies, since the license wasn't limited.

It's a trap for the unwary, which partly explains why there's judicial upheaval around just this question -- judges don't like such traps.

Throw in the varying theories for enforcement of EULAs (e.g., if there is no privity of contract, can you even get contract damages?) and the result is mud.

Linus said...

I am curious as to your one point that the 9th Circuit misinterpreted teh RAM copying issue under Copyright law.

From what i saw, that seems to be the crux of the case. Doing a quick citecheck and a browse of the ALR, it appears that no authority really exists in conflict with the MAIS decision. The DC circuit in Stenograph L.L.C. v. Bossard Associates, Inc., 144 F.3d 96 (D.C. Circuit 1998) discusses some possible defenses to the idea of RAM copying, but isn't that specifically critical of the MAIS decision.

While intuitively, it does seem odd to say that a computer program that loads into the RAM memory counts as "copying" under the copyright law, it also seems odd that there is no contradicting authority on it after nearly 15 years.

The argument was predicated on the idea that this was an infringement on a limited license, the license that allows for copying in the normal course of playing WoW, but not allow copying (to RAM i suppose) in violation of the license, ie EULA. The EULA does specifically prohibit the use of bot programs, so why couldn't that be seen as a limitation on the license?

William Patry said...

Linus, my view of why MAI v. Peak got it wrong is based on the court's failure to appreciate that the definition of "copy" in the Act is directed toward protectibility, in particular the fixation requirement.

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
The first thing to note is that the statutory term defined is a verb, “fixed,” and not the noun “fixation.” The Register of Copyright's 1961 Report to Congress noted that it was “well-established” in existing case law that for a work of authorship to be a “writing” under the Constitution, it had to be “fixed in some tangible form from which the work can be reproduced.” The fixation requirement was expressed in the Register's 1963 draft bill, in all subsequent bills, and is contained in section 102(a), which protects only works “fixed in any tangible medium of expression. …” Yet, no definition of “fixed” was felt necessary until 1965, when audiovisual works were added as a separate category of subject matter in section 102(a)(6) in order first to protect live broadcasts of sports programming so long as they were being simultaneously taped, and second to exclude from protection evanescent images captured momentarily in the memory of a computer. The definition of “fixed,” was therefore, intended to focus on protectibility, not infringement.
The House Judiciary Committee's 1966 report addresses both objectives:

"The committee was persuaded that, assuming they are copyrightable—as “motion pictures” or “sound recording,” for example—the content of a live transmission should be regarded as “fixed” and should be accorded statutory protection if it is being recorded simultaneously with its transmission. The discussions on this point, as well as questions raised in connection with computer uses, further emphasized the need for a clear definition of “fixation” that would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the “memory” of a computer.

The committee has therefore added a new definition of “fixed” to section 101. Under the first sentence of this definition a work would be considered “fixed in a tangible medium of expression” if there has been an authorized embodiment in a copy or phonorecord and if that embodiment “is sufficiently permanent or stable” to permit the work “to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” The second sentence makes clear that, in the case of “a work consisting of sounds, images, or both, that are being transmitted,” the work is regarded as “fixed” if a fixation is being made at the same time as the transmission."

The Register of Copyright's 1965 Report provides details in connection with infringement.

"The touchstone here is the fixation of the work in a tangible object; the showing of images on a screen or television tube would constitute an exhibition under clause (5) [of § 106] but not a reproduction under clause (1) [of § 106]. On the other hand, as long as there has actually been a fixation in some sort of material object, it would not matter if the fixation were impermanent; for example, reproduction of magnetic tape would come within clause (1) [of § 106] even though the tape is later erased."

The Register was not asserting that all conduct that fell within the definition of “fixed” and which would implicate section 106(1) was per se infringing; quite the contrary. The legislative history shows Congress wished to exclude from protection (and therefore from being infringed) “evanescent or transient reproductions … captured momentarily in the ‘memory’ of a computer.” It is with the greatest irony, then, that the definition of “fixed” has been used to render infringing acts that Congress wished to exclude from the ambit of the Act. There is not the slightest indication that Congress intended to inhibit courts from doing what they have always done: adapt, in a common-sense, common-law way, infringement analysis to the purposes of the Copyright Act, the technologies involved, and the economic value of the activity, a point made by the Register in the above-quoted report.

In 2004, the Register, in a congressionally mandated report on the operation of the Digital Millennium Copyright Act wrote:

"In establishing the dividing line between those reproductions that are subject to the reproduction right and those that are not, we believe that Congress intended the copyright owner's exclusive right to extend to all reproductions from which economic value can be derived. The economic value derived from a reproduction lies in the ability to copy, perceive or communicate it. Unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicate, the making of that copy should fall within the scope of the copyright owner's exclusive rights. The dividing line, then, can be drawn between reproductions that exist for a sufficient period of time to be capable of being “perceived, reproduced, or otherwise communicated” and those that do not."

The Ninth Circuit's opinion in MAI held that the internal creation of a “copy” of software in RAM for diagnostic purposes was an infringing (as outside the scope of a license) copy. The relevant discussion is surprisingly brief:

"Peak argues that this loading of copyrighted software does not constitute a copyright violation because the “copy” created in RAM is not “fixed.” However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

MAI Systems falls into the very trap noted above: it confuses “fixed” and “copy” for protectibility purposes with “copy” in the infringement sense. The concept of “copy” in the infringement sense predates the definition of “copy” in the 1976 Act by over two hundred years, and has had, historically, a limited application. Many substantial reproductions (like fair abridgements and translations) were not deemed a “copy” at the infringement stage, even though the unauthorized work was quite fixed. Even after the grant of a more expansive right to prepare derivative works in both the 1909 and 1976 Acts, to be an infringing “copy” a materiality requirement has always existed. The requirement of substantiality for violation of the reproduction right has existed from the 1710 Statute of Anne.
The Ninth Circuit assumed that because placing a work in RAM may be of the entirety of the work, there is no question about such activity constituting a “copy” in the infringement sense even though the alleged copy exists only in an evanescent stage and as a technical necessity, not as an end goal, and even though such a “copy” has no economic value. This was error of a profound kind. Courts did not lose their ability to require that an infringing copy have temporally and economically a meaningful materiality. The Ninth Circuit failed to recognize that the statutory definition of copy is concerned with distinguishing between a material object and the intangible copyrighted work embodied therein. The statutory definition of “copy” has no relevance to infringement. Indeed, this is seen in section 106(1), which gives copyright owners the right to “reproduce the work in copies ….” Infringement is the result of an unauthorized, temporally and economically material reproduction, a reproduction that is contained in a “copy,” the “copy” being the material object not the intellectual property allegedly infringed. Section 106(1)'s use of “copy” performs the exact purpose the legislative history indicates the definition of that term was intended to perform: to distinguish between the intangible work of authorship and the tangible embodiment of that work, namely, the copy. MAI Systems engaged in a semantic sleight-of-hand: the statutory definition of the material object became the definition of the statutory term for infringement—reproduction.

Chris said...

Bill, I'm afraid that I disagree with your view of MAI, mainly because of the changing nature of computer software. In 1966, a computer program really was in memory for a short period of time -- computer memories were tiny and it was common for part of a program to load into a computer, be executed quickly and then overwritten with a different part of the program. Today, the entire program is typically loaded into the computer memory where it can sit for a long period of time.

It's also possible to create a "virtual disk" on a computer -- the "disk" lives completely in RAM, but can be accessed remotely just like a physical disk. It would be bizarre for me to be able to avoid infringement by loading a single copy of a program into a RAM virtual drive on one computer and copying it from there to RAM virtual drives on 100 other computers which run the program, but infringe by replacing the RAM drives with internal hard disks.

(For that matter, what happens when a program is "swapped out" -- the computer decides that it needs the RAM for something else and so copies the program temporarily to the hard disk for retrieval later? Surely whether an infringement has happened cannot depend on whether the operating system uses virtual memory.)

Now, there are cases where something is loaded into computer memory for a brief transitory instant -- streaming media, for example. And, in these cases, it appears that fixation never occurs.

Linus said...

This seems to me the truly breathtakingly broad aspect of the MAI case.
I think what you say here,

"even though the alleged copy exists only in an evanescent stage and as a technical necessity, not as an end goal, and even though such a “copy” has no economic value." and

"Courts did not lose their ability to require that an infringing copy have temporally and economically a meaningful materiality."

This part confused me for a second. I think the argument is that there are two definitions of copy at work here, one, which is concerned with whether something is considered as somethign that could be protected by the copyright law at all, such as "copies" in motion pictures, or transmission. The idea here would be that even if the "medium" is not "fixed" and would have a copying process, it could still be protected.

The second definition which is what the Ninth circuit glossed over, is that infringing act, namely, the "Copying" of a protected work. The Court makes the jump from the proposition that just because something is copied into RAM, doesn't preclude it from being a protected medium, to the erroneous conclusion that copying into RAM is an "infringing" act of "Copying".

What confuses me is that you make note of the economic and materiality of the copying. Isn't that more of a question of a fair use doctrine defense? IE, if the copying, an infringement, would nevertheless be protected by fair use, for lack of commercial gain or transformative nature of the "copy."

Thanks for spending any amount of time on this, this is what makes copyright law intersting in the new media age.

Anonymous said...

I don't play WoW so I don't know how its pricing scheme works, but I have played a bit of EverQuest2 (EQ2).

One does purchase the EQ2 program itself in the store, but it doesn't end there. All the program does is allow you to access the online world Sony has created, which one generally pays a monthly subscription fee for. The software isn't good for much if it isn't connected to Sony's world servers.

And the very first step before one can play for the first time is automatically downloading a huge patch from Sony's servers for several hours.

So at least for EQ2, I think there are some good arguments to make in favor of "license."

But I still don't understand why copyright would even come into play with the WoW Glider. As others have noted, the customers are breaching their contract with Blizzard by using it.

Robin said...

Bill, I've long agreed with you on MAI Systems v. Peak Computer, oddly enough the fallacy at the core of its reasoning as well as the result was one of the things that inspired me to move from software development to law.

Here, I think the problem is a fundamental error in the court's understanding of what a derivative work is.

Scott said...

To answer chris... whether or not a copy of a work which resides in a computer's memory systems (whether RAM, disk, solid-state nonvolatile memories such as FLASH, or something else) is "fixed" probably ought not depend on the physical characteristics of the memory device--as you note, operating systems move stuff around as necessary to optimize the computer's performance--but as to whether the memory system in question appears "volatile" or "nonvolatile" to the user.

A copy of a work which exists in the filesystem of a computer--on most computers, this is nonvolatile, resident on a hard drive or FLASH device, I would think would be fixed. A file streamed through the computer's memory and swapped out to the same disk ("virtual memory") would not be--swapfiles generally don't survive a reboot (the OS re-initializes them as needed, and ignores the prior contents of the swapfile when a computer is booted anew), after all. And data which is still present on the disk after being "deleted" by the user (when you delete a file, the computer generally doesn't immediately wipe the underlying storage) I would think would no longer be fixed.

Likewise, a virtual RAMDrive, especially one which is visible to the outside world and installed on a computer with a large uptime, probably should be considered "fixed" even though the underlying storage is electronically volatile.

To address anonymous 11:48, the reason copyright was likely invoked is so that the instant defendant (MDY) could be sued in the first place. MDY isn't privy to any contract between Blizzard and and end user, there is no such thing in law as "contributory breach of contract". But there is contributory copyright infringement. I agree with William that the court made manifest errors of law in its ruling, and I would be astonished were the judgment to survive appeal. But without the copyright claim, Blizzard has no cause to bring suit against MDY in the first place. (Perhaps an "unfair competition" claim; but I don't know...)

Anonymous said...

One thing to keep in mind: by conflating contract issues with copyright infringement, as I believe the court has done, violating any of the terms of the EULA makes you a copyright infringer.

That's right, if you name your character "roflcopter," you are subject to damages beginning at $750.

Keith Irwin said...

To me the fundamental problem with a decision which regards a copy of something in RAM as being a potentially infringing copy is that it makes copyright criminals out of anyone who has ever loaded a DVD into a DVD player. It is impossible to play a DVD without copying its contents into RAM as you play it.

Unlike laser discs, DVDs compress the data they contain. Decompressing the data so that it can be reproduced on a display requires that it be first copied into some form of temporary buffer where it can be digitally manipulated. The output of that manipulation must also be written into a frame buffer before display. This is because portions of the DVD picture are encoded relative to portions of previous frames.

As such, it is technologically necessary to copy whole frames of movies into RAM in order to play a DVD. But unlike the copyright law for software, no exception has been crafted to allow this. So, if a copy in RAM can be an infringing copy and the user has not acquired a license to copy (as we have not), then it follows that watching a DVD is a form of DVD piracy.

It seems clear to me that any case law which makes the majority of citizens criminals is bad case law.

Pamela said...

Has the ineffectiveness of section 117 been discussed anywhere? By its terms it only applies to "owners," yet software users are often (as most software companies would have you believe) licensees. It doesn't seem that section 117 is doing what it was meant to do, i.e., allow lawful users to just use the program, which is what allowed the court here to reach the MAI v. Peak theory of infringement. Should 117 be amended to add/substitute "lawful users"?

Pamela said...

Re Scott's comment about a contract claim and no such thing as contributory breach of contract, the court found MDY liable for tortious interference with contract.

lqp said...

Of course, "purchase online" hardly can be considered sale - no material object changes hands. However on the very same reason "purchase online" cannot be lease of copy. The material object in question (computer) is owned by "purchaser" from the start. This contract is really about creation of copy of program using "purchaser"`s materials, like in photocopy shop. And it will be consistent to other areas of copyright if the person who responsible for that copying will be the "seller" itself.

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