This week, PK filed a friend-of-the-court brief in the 9th Circuit, asking it to find that software users don’t immediately become copyright infringers if they violate the company’s (often clickthrough) end user license agreement (“EULA”).
The appeal comes out of a federal court in Arizona, where Blizzard, the makers of the massively multiplayer online game World of Warcraft (“WoW”), accused Michael Donnelly and his company, MDY LLC, of copyright infringement because he created and sold a program called Glider.
Glider is a “bot,” a program that lets players automate some of the more tedious aspects of playing WoW, such as travelling long distances, or doing repetitive, grinding tasks in order to gain in-game gold or experience points. For a variety of reasons, bots are highly disfavored by Blizzard, which has banned their use in their EULA and their terms of service. So using a bot would violate your agreement with Blizzard.
But would it make you a copyright infringer? Under sane circumstances, no, it wouldn’t. You’re not affecting any of Blizzard’s section 106 rights in WoW, so where does the cause of action come from?
According to Blizzard, it’s because playing WoW (just like using any other computer program) means that you’re making a copy of the software in your computer’s RAM. That, they argue, is “reproducing” the copyrighted game, and copyright infringement.
So what keeps every software user anywhere from infringing every software copyright? Are we just benefitting from the largesse of software creators who (unlike some others) simply realize that it’s not in their best interests to sue their customers?
According to Blizzard, yes.
There’s a couple of nuances that need to be covered before we get to that, though. First, Congress fully doesn’t intend that every computer user must fear the wrath of copyright’s statutory damages just to use copyrighted computer programs. Section 117(a) of the US Code’s title 17 (which covers copyrights) says:
(a) Making of Additional Copy or Adaptation by Owner of Copy.— Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner
…
</ blockquote>In other words, you can make RAM copies of your software, since they’re necessary to run it, and you’re not subject to any copyright complications, so long as you aren’t trying to extract that RAM copy for some other, more nefarious purpose.
Blizzard, however, tries to sidestep section 117 by quibbling with the word “owner.” According to their EULA, no one who ever buys a copy of WoW actually owns the disk they take home from the store. (The clickthrough EULA says so, so of course it must be so.) Since the user isn’t the “owner,” according to Blizzard, the user never gets the rights available under section 117. So according to Blizzard, you’re under the gun for copyright infringement unless they say so.
And they say so in a very narrow set of circumstances. Unless you follow the terms of the EULA and Terms of Service, according to them, you’re an infringer, regardless of how minor the infraction, or how unrelated to violations of Blizzard’s copyrights. So long as the breach of the agreement harms Blizzard’s “proprietary interests,” the violation becomes copyright infringement.
These copyright claims all hinge on how much weight a court gives to a EULA that simply declares that someone who possesses software on their own hard drive isn’t in fact its owner.
Unfortunately, Blizzard’s arguments prevailed in the district court, which is why Donnelly appealed to the Ninth Circuit, where (with the help of Assistant Professor Brian Carver of UC Berkeley’s School of Information) we filed our brief.
In it, we argue that courts need to do more than just take the word of a EULA that a user doesn’t own software. Instead, they have to look at the realities of the situation, including whether or not the buyer actually retains possession of the copy for an unlimited time. Unlike a rental from Netflix or Blockbuster, the buyers of WoW keep that copy until they decide to sell it or throw it away. What happens in the real world, and not what gets crammed into fine print, should control how a court interprets ownership.
This is an issue that stretches well beyond a single computer game. The next time you buy or install a piece of commercial software, look through that clickthrough for language that says that the company owns the copies. Then look at all of the other terms of the EULA. Violate any of those, and here come the statutory damages.
It’s our hope that the Ninth Circuit will restore some sanity to the world of software copyrights by looking to the facts of a transaction, not just the say-so of a clickwrap.
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