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      Thursday, July 17, 2008

 

Reaction to the Blizzard v MDY decision from Corynne McSherry at the EFF:

"In a devastating blow to user rights, an Arizona federal court has ruled that consumers can be guilty of copyright infringement if they violate the end user license agreement ("EULA") that comes with the software--even where the so-called "violation" is specifically excluded from copyright liability. Why? Because those protections only apply if you own the software you buy--not if you license it. Stunningly, this means that "cheating" while playing a computer game can expose you to potentially huge statutory damages for copyright infringement.

As we noted back in May, Blizzard Entertainment, the company that makes the hugely popular massively multi-player online role-playing game World of Warcraft, sued Michael Donnelly, the developer of Glider, a program that helps WoW users raise their character level to 70 by "playing" for the user. Blizzard said that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game, and Donnelly is illegally contributing to that infringement...

Sadly, the court ... held that because Blizzard says the software is licensed, and because it imposes restrictions on use ... that means that users who violate the EULA could be on the hook for copyright damages... as high as $150,000 per infringed work. Most disappointing, the court gave short shrift to the absurd policy consequences of treating users who violate a contract as copyright infringers. The logical implication of the holding is that any time you buy software, be it film editing software, accounting software, iTunes, Skype, etc., software owners can always use license agreements to prevent you from ever having full control over your software and taking advantage of standard copyright limitations (such as the right to sell your copy [Section 109 of the Copyright Act] or the right to make copies necessary for use of the software [Section 117]). You can buy it, but you can’t own it."

Update: Via Michael Geist, Information Week had a report on the case yesterday. The report references William Patry's reaction to the decision.

"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... 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."

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