Today, PK asked a federal court in Arizona to accept our “friend of the court” arguments in MDY v. Blizzard, a case pitting distasteful gaming behavior against an unsavory over-assertion of copyrights.
The basic details behind the story are here.
MDY, Inc. makes a program called Glider that plays World of Warcraft automatically. Players using Glider can gain experience points in WoW while not at their computers. This causes a number of gameplay issues for Blizzard, the makers of WoW. It also violates their Terms of Use (“TOU”), which are incorporated into their End User License Agreement (“EULA”).
So Blizzard sues MDY. Ok. For copyright infringement. Less Ok. Here’s why.
Blizzard is actually suing MDY for both secondary copyright infringement and tortious interference with contracts. There’s a few different ways someone can be secondarily liable for copyright infringement, including contributory infringement, inducing infringement, and vicarious liability. In all of these cases, though, a plaintiff has to show that there’s been a direct infringement of copyright in the first place.
In this case, Blizzard is saying that any user who runs Glider while playing WoW is infringing Blizzard’s copyrights. This is despite the fact that Glider doesn’t make any copies of WoW. Instead, Blizzard claims that any time a user runs WoW, the copy of the game (or the portions of it) that are copied into RAM are infringements. Or, at least, they would be, but for the generosity of Blizzard, which grants users a license to make these RAM copies. That license, Blizzard argues, includes limitations, like not using bots like Glider. So using glider is a violation of the license, meaning that making that RAM copy is copyright infringement. Bring on the statutory damages!
Of course, basically every program ever written needs to be loaded into RAM, and certainly not every coder is going to have a license agreement with every user. So why isn’t every user a copyright infringer?
One major reason is 17 U.S.C. §117. This portion of the copyright law says that if you own a copy of the program, you’re not an infringer for making copies that are essential to using it on your computer. RAM copies are the quintessential example of that. If I’ve bought a copy of WoW at my not-always-so-friendly local electronics retailer, I have every right to run it, making that RAM copy in the process, and whether or not Blizzard deigns to allow me to do so is irrelevant. They are perfectly free to grant that license, but it’s something the users can with or without their permission.
One counterargument we address in the brief is the question of whether or not the user is actually the “owner” of the copy. According to Blizzard, no one who buys a copy of WoW actually owns that copy. Instead, the user is merely licensing it. Keep in mind, this isn’t just a question of whether or not the user is licensing the copyrighted program contained in that copy; Blizzard is saying that you’re also just licensing the individual copy contained on the individual disc you bring home from the store. Apparently, that’s not yours—it’s just rented, due to the operation of some magic words in the EULA.
This defies reason, and it defies a body of legal cases that say a court has to look at the circumstances surrounding a sale to decide whether or not it’s just a rental, not based on the self-serving clickwrap that comes with the software. After all, if that’s the only thing that mattered, section 117 would be of no use at all. Nor, for that matter, would section 109—the part of the law that lets you sell used CDs. If we decided that a EULA alone determined ownership, it’d be a simple matter for software companies, record labels, and movie studios to prevent anyone from selling used media ever again.
Meanwhile, Blizzard’s basing its copyright suits against MDY on the idea that individual WoW players infringe copyrights any time they do something against the terms of use, which is where bots are explicitly banned.
This causes a whole host of other problems, especially when you look at some of the other terms of use:
you may not:Communicate directly with players who are playing characters aligned with the opposite faction (e.g. Horde communicating with Alliance or vice versa);
Or
In particular, you may not use any name:
- Belonging to another person with the intent to impersonate that person, including without limitation a “Game Master” or any other employee or agent of Blizzard;
- That incorporates vulgar language or which are otherwise offensive, defamatory, obscene, hateful, or racially, ethnically or otherwise objectionable;
- Subject to the rights of any other person or entity without written authorization from that person or entity;
- That belongs to a popular culture figure, celebrity, or media personality;
- That is, contains, or is substantially similar to a trademark or service mark, whether registered or not;
- Belonging to any religious figure or deity;
- Taken from Blizzard’s Warcraft products, including character names from the Warcraft series of novels;
- Related to drugs, sex, alcohol, or criminal activity;
- Comprised of partial or complete sentence (e.g., “Inyourface”, “Welovebeef”, etc);
- Comprised of gibberish (e.g., “Asdfasdf”, “Jjxccm”, “Hvlldrm”);
- Referring to pop culture icons or personas (e.g. ” “Britneyspears”, “Austinpowers”, “Batman”)
- That utilizes “Leet” or “Dudespeak” (e.g., “Roflcopter”, “xxnewbxx”, “Roxxoryou”)
- That incorporates titles. For purposes of this subsection, “titles” shall include without limitation ‘rank’ titles (e.g. , “CorporalTed,” or “GeneralVlad”), monarchistic or fantasy titles (e.g., “KingMike”, “LordSanchez”), and religious titles (e.g., “ThePope,” or “Reverend Al”)
Got that? Name your character “Roflcopter,” and you’re liable to Blizzard for copyright infringement. Now these rules may make good sense for running a game, but they’re not in any way related to Blizzard’s copyrights.
Plainly, this is ludicrous. Of course, Blizzard wants to stop people from using bots. And yes, bots are against the agreement between Blizzard and the users. But that makes it a contract dispute. If you use a bot, you get kicked off. And blizzard, if they want to, can go after you for breach of contract.
As for MDY, Blizzard can make use of—and has made use of, in this suit—a cause of action called “tortious interference with contracts.” Basically, if you make a bad-faith effort to get someone to break a contract they have with someone else, you can be liable for the damages caused by that breach.
There’s a big legal difference between what happens when you breach a contract and when you infringe copyright. Generally speaking, the idea with contract remedies is that if you break a contract, you have to pay the other person what they’ve lost due to the breach. In copyright infringement, though, you pay a minimum of $750 per infringed work, and up to $150,000 for willful damages, no matter how little the copyright holder has lost. Roflcopter might be an amusing name, but it’s not worth that.
Ultimately, the best outcome
Ultimately, the best outcome in this case is injunctive relief. Ongoing updates to Glider would be shut down (or at least move offshore), and everyone (except the cheaters and those who make their money on the backs of cheaters, of course) would be happy. The money is just gravy, in a sense, as a sort of RIAA-style warning against other cheaters to close up shop so that Blizzard doesn’t have to sue anyone else.
Also, this case will be a watershed in terms of using both copyright law and the claim of tortious interference in this sort of situation. If the court finds in favor of Blizzard on either claim, you better believe that other companies will file suits left and right against their respective cheaters. The question of damages is what determines whether the cheaters shut down their operations immediately or wait to get sued.
A good point—Blizzard is
A good point—Blizzard is probably most interested in just stopping the behavior. It’s just that their theory throws user rights under the bus.
In terms of what other companies may do, I’m not so sure. If the court decides the wrong way on copyright, perhaps,because then there’s money to be made. In terms of injunctive relief or damages from the tort side of things, it really becomes a cost-benefit question that will vary depending on the developer’s attitude and business model.
MMORPGs are in a unique position of making money from continued subscriptions, as opposed to a one-time purchase. A lot of other types of game companies probably don’t have as much on the line in terms of keeping gameplay fresh and hassle-free for players.
Also, by centralizing the server system (another thing that MMORPGS necessarily have to do, and that other multiplayer online games don’t), Blizzard puts themselves in the unenviable role of policing behavior on the servers. In a game where ordinary users can host game servers, those hosts can be as strict or as lax as they want to be about cheating, silly names, or other behaviors.
It’s not about injunctive
It’s not about injunctive relief. Donnelly posted on his forums that he offered to shut down WoWGlider.com after the October meeting and walk away but Blizzard insisted he also turn over his profits, so he fought. They could already have won if they wanted to.
Blizzard has the right idea
Blizzard has the right idea in going after MDY, yet they have their facts wrong. MDY’s “Glider” does not make copies of the World Of Warcraft client. It simply attaches itself to the WoW client, much like an addon would for Internet Explorer. The only time that the WoW client would be copied is for MDY to make new releases of its Glider.
The truth is, they can’t figure out how this program works. Otherwise they would have kicked all of its users a long time ago. They can’t prove that MDY’s product makes RAM copies of WoW. If they could, they wouldn’t have this problem.
As stated above, the worst thing that will happen is that MDY will have to pay Blizzard some lump sum. MDY will shutdown Glider and probably host it outside of the US. From looking at the filed papers, Blizzard has no evidence against MDY, other than a simple hunch…
Just my 2c
TMCleve—Thanks for the
TMCleve—Thanks for the comment. Blizzard isn’t arguing that Glider is making its own copy of WoW. instead, they’re saying that, since the player makes a RAM copy of WoW every time the game is run, that RAM copy would be an infringement unless the player is following the terms of the EULA and TOU, which forbid using Glider.
Glider may not make the RAM copy, but the user (or at least the user’s computer) certainly does—it’s just a technical requirement of running the program in the first place. And if there’s one thing Blizzard is well positioned to understand, it’s what is and isn’t necessary for WoW to run.
I think their inability to find countermeasures to Glider is less significant in the lawsuit than it is in practical gameplay and server administration.
Here is my issue, with the
Here is my issue, with the fact that Blizzard’s “Warden” software actively searching your computer and your RAM. Are they not infringing upon my rights in several ways?
1) Privacy, if I am using such software as Quicken, or other financial documents they then know what I have
2) They admittedly search your RAM for “known” cheat programs and file sized that fit a certain criteria of cheating utilities. I personally use an automation software for other games that allow it, but have had an account banned for just having “Auto-it” installed.
3) Their allegations of copyright infringement by making copies in RAM, are they not infringing upon copyright laws that they interpret by doing the same?
4) When did copyright laws allow them to bypass the privacy act?
There is one point being
There is one point being missed here. World of Warcraft cannot be played without accessing and sending data to Blizzard’s servers. The data sent by using the bot software created by MDY violates any and all reasonable terms of the game play agreement.
Secondly, MDY violates copyright because of the fact that it uses Blizzard’s code. The program they sell does not itself run; it requires World of Warcraft to run. By selling their Glider program, they are using the intellectual property of another company, without their permission, for profit. Even a first-year law student knows you can’t just take someone else’s intellectual property, use it directly, and sell it for profit.
Admin: I agree that the bot
Admin: I agree that the bot does violate the terms of the agreement—the big question is whether or not that’s a copyright violation.
And using someone’s IP without permission isn’t automatically a copyright infringement—nor is creating a product designed to work hand in hand with someone else’s work. A concordance or series of annotations to a book, for example, is useless without the original text, but is by no means an infringement of the original author’s copyright.
Creating a mod for a game (in the sense that, say, Counter-Strike was originally a mod for Half-Life) in and of itself wouldn’t be a copyright infringement either, if the mod was distributed alone and didn’t distribute copies of the original code, modified or not.
The problem is that Blizzard is saying that every single user who violates their EULA is a copyright infringer. Any one of these bits of fine print can, according to their theory, subject a user to statutory damages.
Blizzard Wins vs. Glider:
Blizzard Wins vs. Glider: What it means for the virtual currency market
We posted a blog post on this over at GameRates.com on what this means for some other ToS/EULA violators such as virtual currency sellers.
“What does this mean for the gold industry however?
First off it may embolden Blizzard to actually take on major gold sellers in the courtroom. However, this could be a very dangerous move as if they lost or perhaps a U.S court found that virtual currency has real worth it could awake the sleeping giant of legal problems. For example if Blizzard bans someone accidently, or it’s servers crash, or they nerf an item all which destroy virtual goods (with real legal value) in the process one may be able to sue Blizzard for these “real” damages caused. For this and many other reasons we doubt that such a case will arise although the reverse may be true (a gold farmer suing blizzard for preventing them from selling its legally acquired in-game goods for cash outside the game). For those of you that have been around for a while you may remember the BlackSnow Case against Mythic where such a thing happened.
Still the scary thing is the wide ruling that violating a Terms of Service (ToS) or End User License Agreement (EULA) that you haphazardly click every time you play the game can be counted as copyright infringement. An EULA can say virtually anything it wishes. Does violating any part of it really count as copyright infringement? If you choose to farm items by hand using normal game mechanics without interfering with anyone else and then you mail the items you acquire to another person that is fine (it would be considered “twinking” a friend or new character), yet if you do the same action and the person sends you $10 through PayPal for the gift is it then considered a copyright violation because it violates Blizzards ToS?
That’s ridiculous and as such we don’t see the case ever being applied to the virtual currency market.
In fact we think that if the case is appealed it has a very good chance of being reversed. It’s simply too broad in its scope”
Well, I don’t see this
Well, I don’t see this ruling as making gold any more like real currency than it was before—all the court is doing is affirming the strength of Blizzard’s EULA. In fact, such a ruling makes it much less likely that someone banned from a server can bring a suit for loss of virtual items.
The court also makes an interesting distinction in interpreting parts of the Terms of Use—it claims that, even though the TOU are incorporated into the EULA, only the parts of the TOU that deal with rights of the copyright holder—copying, distributing, or modifying the work—are license limitations. The other portions, like those dealing with usernames etc. are considered contractual terms. So violating those rules against selling items might still be a contractual breach rather than copyright infringement.
Of course, I’d argue that using a bot falls into the same category—a contractual breach, but not copyright infringement, so I’m not sure how this squares with the court’s ruling on the legality of Glider generally, since using a bot doesn’t interfere with the core bundle of rights.