MDY v. Blizzard: Cheating at WoW may be bad, but it's not copyright infringement

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:

1. 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;
2. That incorporates vulgar language or which are otherwise offensive, defamatory, obscene, hateful, or racially, ethnically or otherwise objectionable;
3. Subject to the rights of any other person or entity without written authorization from that person or entity;
4. That belongs to a popular culture figure, celebrity, or media personality;
5. That is, contains, or is substantially similar to a trademark or service mark, whether registered or not;
6. Belonging to any religious figure or deity;
7. Taken from Blizzard’s Warcraft products, including character names from the Warcraft series of novels;
8. Related to drugs, sex, alcohol, or criminal activity;
9. Comprised of partial or complete sentence (e.g., “Inyourface”, “Welovebeef”, etc);
10. Comprised of gibberish (e.g., “Asdfasdf”, “Jjxccm”, “Hvlldrm”);
11. Referring to pop culture icons or personas (e.g. ” “Britneyspears”, “Austinpowers”, “Batman”)
12. That utilizes “Leet” or “Dudespeak” (e.g., “Roflcopter”, “xxnewbxx”, “Roxxoryou”)
13. 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.