Courts Should Reject Blizzard's Assault on the First Sale Doctrine

from the contract-or-copyright? dept

Tue, May 6th 2008 1:13pm — Timothy Lee

We've written before about the ongoing fight over the legal status of end-user license agreements. Many software companies have tried to claim that breaking an EULA is copyright infringement, which often carries harsher penalties and stronger remedies than mere breaches of contract. The courts have generally resisted these arguments, holding that a copyright holder cannot expand the scope of copyright simply by attaching a "license" to its products. The Electronic Frontier Foundation points to the latest skirmish in this debate: Blizzard has taken the position that using a piece of software called Glider to cheat in World of Warcraft is not only contrary to the game's license agreement but is copyright infringement as well. Indeed, on Blizzard's theory, any violation of the license agreement would constitute copyright infringement.

Public Knowledge has submitted a brief in the case pointing out the real problems the courts would cause if they accepted Blizzard's argument. For example, among the terms of the World of Warcraft license are rules about what you can name your in-game characters. Blizzard's theory would mean that if you choose a name that violates those rules (such as naming your character after a "popular culture figure, celebrity, or media personality"), you would not only get kicked out of the game, but you would be liable for copyright infringement too! This is plainly not how copyright is supposed to work, and PK rightly urges the court to reject Blizzard's over-reaching argument. Perhaps most troubling, accepting Blizzard's argument would mean that software vendors would have the power to dictate who may make software that interoperates with their products. Outside of the much-reviled DMCA, copyright law has never given software vendors this kind of control, and there's no good reason to start now.

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Filed Under: copyright, eula, first sale, world of warcraft
Companies: blizzard, eff

25 Comments

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Chris, 6 May 2008 @ 2:35pm

Why would Blizzard even care if you named yourself after a celebrity or whatever?
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Anonymous Coward, 6 May 2008 @ 2:43pm

Going wrong way round on this
The real way to implement enforcement of the EULA is to consider 3rd party software a hacking attempt instead of a copywrite issues. Then use appropriate laws to resolve the issue.

As for the naming issues, yeah... it is dumb but they are trying to promote role playing... though on my server there is a toon named Neeyo who is always picked on in chat which violates that name thing...
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Matt Damon (no, not the one you're thinking of), 6 May 2008 @ 2:54pm

Re:
What's more, what if you're the celebrity in question and simply want to use your name in the game?

Or worse, what if your name happens to be the same as a celebrity's and you just want to use your own name?
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Shohat, 6 May 2008 @ 3:17pm

Blizzard are the good guys
Seriously. If they even get someone sent to jail, for whatever reason, they will still be the good guys.
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Trerro, 6 May 2008 @ 3:24pm

If Blizzard can't police their own game, it's not our problem
If someone cheats, disable their CD key, so they can't play on your servers. With an MMORPG, this pretty bans their copy of the game from use (sure, there's private servers, but most of them suck, and only a very small percentage of players use them.)

If your game is pulling in ~$100 mil/month, and you can't afford to have a team of decent GMs patrolling the world - or failing that, at least checking out reported botters/crackers/whatever, then something is VERY wrong with the management of your gaming company!

The only think cheating does is violate your contract with the company - you agree to pay a fee and play by the rules in exchange for access to their servers. If you break the contract, you lose your access. That's it. That's the only penalty that makes any sense. Anything further is abuse of copyright law.
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DittoBox, 6 May 2008 @ 3:48pm

Re: Going wrong way round on this
Define "hacking." Are you talking about cracking an external network or cracking binary code that purchased a so-called license for?

If its the latter (which I don't believe it is) then we're talking about much greater penalties than copyright infringement. If its the latter then we've entered a grey area since cracking software isn't considered a crime by any means, a breach of the EULA contract perhaps, but nit a crime.
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Dude, 6 May 2008 @ 3:54pm

Re:
They may be liable for any action you may undertake as that "persona" including defamation of charecter.
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Anonymous Coward, 6 May 2008 @ 4:20pm

hm i need to check out glider.
thanks for the name for the game
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Rose M. Welch, 6 May 2008 @ 5:22pm

Lazy bastards...
This is a short-sighted attempt to stop some of the cheating mods that are available to use with WoW. I'm glad that cheating is againts the TOS because it unbalances the game for all of the other paying users, but this is a bad, bad way to go.

I pay money for the use of the game, and for all the costs thereof, including people to moniter and make sure that as little cheating as possible happens. In fact, all WoW users have to agree to let Blizzard moniter thier RAM to ensure that as little cheating as possible is going on.

What happens when Microsoft decides that video games cause violence and says you can't use WoW on thier OS and puts that in thier EULA. To play WoW or GTA or any other supidly controvercial game suddenly becomes a crime, simply through stupid politicians leaning on companies to change thier EULAs.

Whafuck?
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Anonymous Coward, 6 May 2008 @ 9:18pm

You think that's bad
a little off topic but -

BioWare technical producer Derek French has said that the PC versions of both Mass Effect and Spore will make use of copy protection that will require online validation every ten days to continue working

http://www.shacknews.com/onearticle.x/52547
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Anonymous Coward, 7 May 2008 @ 4:54am

I also need to check out this program. thanks
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Anonymous Coward, 7 May 2008 @ 5:23am

Re: Going wrong way round on this
I don't think that hacking applies here. My understanding is that Glider is a sepparate application which processes the information that Blizzard gives you through the game and responds with appropriate output in the form of 'clicks' and other commands. It's just a bot playing for you. I don't see how that's cheating, and while I can possibly accept their claim that it ruins their design assumptions (you know, like how humans have to sleep and use the bathroom and are never 100% efficient with their time in-game) which stresses their resources. But it certainly doesn't look like this was any kind of hacking job.
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Anonymous Coward, 7 May 2008 @ 5:26am

Re: Blizzard are the good guys
No they aren't. How can you even claim that? Someone writes an app that lets them skip the boring parts of a game, and Blizzard brings out the big legal guns and starts talking about copyright infringment, EULAs, and claims you don't own the software you bought and installed on your computer. They're the bad guys.
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Anonymous Coward, 7 May 2008 @ 5:33am

Re: Lazy bastards...
So, I guess I'm missing something here. I know certain parts of the game are competative (though, only if you're on a PvP server), and I guess if there were a way to cheat in that... I'm at a loss as to what you'd consider cheating, though. Telling the game you hit 100% of the time? Telling the game you deal more damage than you should? Is that sort of thing even possible from the user's side?

Anyways, I don't get what the bother is for the other 90% of the game that's individual -- if someone else cheats and makes their life easier, they haven't made yours harder. They can't kill all the mobs, they can't mine all the ore. and if they want to pay $20/mo to have a bot play a game...? That may be dumb, but I fail to see how it's particularly harmful.
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Oliver Wendell Jones, 7 May 2008 @ 7:13am

It's about grouping with cheaters
It's not about Player_A is better than you because he cheated, or whatever, it's about when you and Player_A, Player_B, Player_C, etc. try to go complete a quest together and you notice that Player_A doesn't have the foggiest clue how to play his character because he skipped all the boring parts - the parts where you learn strategy and how to use your character's abilities and got to be high level by pushing a button and going to bed.

Then you have to kick them out of your group and and go back and look for another player to replace them. That wastes everyone's time and can ruin a night's play for a group of people.

That happens enough times and people start to get disenchanted with the game and the next thing you know, they stop playing and stop paying. That is what Blizzard is trying to avoid.
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Anonymous Coward, 7 May 2008 @ 9:24am

Re: It's about grouping with cheaters
A very good point, and I must concede it, but I think it's fairly far-fetched. These bot-built players would have to be fairly numerous and it's not enough to be a bot-user, they have to use the bot to the exclusion of actually playing the game.

I submit that most people aren't that dumb, they want to play the game they're paying for. In this case you don't learn strategy from the tedius monster-grinding that Glide would automate, you learn it from running the bigger, more-interesting quests. If someone sets the bot to grind straight to Lv70 they're going to get approximately zero use out of the game: they won't be able to handle the quests on their own and they won't be able to hang on to a team. They'll constantly be frustrated and *they* will quit.

More likely, I think the issue is simply what they claimed early on: it futzes up resource allocation based on certain assumption they have on the way people play games. The existance of this bot and others like it would require them to reengineer their system. I think that is what they're trying to avoid, but I also think that it's a problem they'll have to deal with eventually, with or without the bots.
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Rose M. Welch, 7 May 2008 @ 10:33am

Re: Re: It's about grouping with cheaters
Do you play WoW?

Are you alive?

Alot of people want things that they haven't worked for and will muck it up when they get it. This is repetitive in many, many areas of life, including World of Warcraft. To say that nobody ever wants the credit for something they didn't do, or that nobody ever wants to skip the hard work and get straight to the 'good part' is incredibly naive and gives the idiots that dominate the world WAAAAAAYYY too much credit.

People pay to get high-level characters that they didn't earn that they then use to blunder about my game with. It's cheating because it's against the rules. That's what cheating is, regardless of whom gains or loses what from it.

If I cheat on a test in college, I don't hurt anyone else, as long as it's not graded on a curve. So who cares? lets let everyone 'cheat'. It's not cheating unless someone else gets hurt, right?
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koresho, 7 May 2008 @ 10:51am

Re:
"hm i need to check out glider.
thanks for the name for the game"

The Streisand Effect at work. Ha ha ha! Take that Blizzard.

On a side note, I will not purchase another WoW subscription for this very reason. Unless they withdraw this case, at least.
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Jared, 7 May 2008 @ 11:42am

wow.
"On a side note, I will not purchase another WoW subscription for this very reason. Unless they withdraw this case, at least."

You're protesting WOW, eh? haha. It seems to be easier to pick on Blizzard than it is to blame those who are truly at fault. Look at the issue at hand: MDY's Glider creates an unfair advantage for some players in the game and is against the TOS (and it's just wrong... common sense folks. The "right" or "wrong" judgement call here is not even up for debate).

Bottom-Line: If you enjoy the game, play, and there's no issue. If you don't enjoy the game, save yourself time and money ($15/month and whatever Glider costs), and don't bother playing!
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moses, 7 May 2008 @ 2:15pm

Re: Rose M. Welch
lol? yes let everyone 'cheat' because we can compare academic integrity with exploiting video games *claps* gj lurk moar pls.

Oh and it's not cheating unless you get caught, in collage you will get expelled and marked ... in WoW you will get banned. But in WoW that will only cost you a month's subscription cost. However if you used Glider to BoT in-game gold and then sold it off ... I'm sure you're turning a profit anyways. Hey we should support Glider, it lets hobbyist gamers catch up with the elitist gamers! They spend the money made at their full time job and then funnel this money back to the elitist gamers ... creating a happy cycle. And Blizzard still gets the monthly charge from everyone ... shouldn't that make everyone happy?

Oh and lol
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Rose M. Welch, 7 May 2008 @ 4:23pm

You're an idiot.
Because you won't be happy when you're held to all kinds of stupid shit in EULAs that you agreed to when you tried to use the product that you purchased.

Oh and lol.
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mark, 8 May 2008 @ 6:51am

ban the cheaters
Glider is also used by gold farmers. So this way people using glider also mess up prices you pay for items on the Auction house.

allthough I think the way they are going about this is wrong.
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Anonymous Coward, 26 May 2008 @ 3:29am

EULA funny stuff
Haven't the guys at blizzard ever heard of things called dishwashers, robotic vaccuum cleaners and robotic lawn mowers, programs that can let me mirror a website for later viewing. Its the 21st century and we have robots to make our lives easier.. If i use a dishwasher I'm not cheating at my share of the household chores. It simply give me more time to spend my time doing the things I enjoy.

EULA would last in court as far as a "no refund signs on a store counter"

Regardless of what you put it in the EULA, the customer will have the same rights as any other rental.
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Anonymous Coward, 26 May 2008 @ 3:39am

In addition how about this.. I rent a laptop.. and I use a download manager overnight.. I'm using a bot to use the rented laptop more than a single human could ever use it.. oh no is the rental company going to sue me, ban me? take back the laptop?
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Anonymous Coward, 26 May 2008 @ 1:42pm

Now this brings us to the third part

Cheat: "to act dishonestly to gain an advantage". Breaking the rules does not mean you are necessary cheating. For example if you go competitive bike riding you may be required to wear highly visible clothing and helmet for your saftey. If you dont wear it you are breaking the rule but by no way are you cheating.

So what advantage was gained? You don't own your lvl 80 character blizzard does.. You have absouletly nothing. And no other players are any worse off becuase you used a bot because all other players have nothing as well. Their characters are worthing nothing.
If you own nothing, and get nothing more of a favourable outcome for using it then no cheating occured.

At the end of the day using a bot to play wow is no different than using a dishwasher to wash my dishes..

This isnt CS: source where you can shoot them in the head through the wall kind of stuff, or use an aimbot.

At the end of the day the ultra-rare magically sword is worth nothing, and no-one cares until you stab someone for it, as history proves.

Conclusion is you cant cheat on nothing to gain an non-existent/intangible advantage on nothing.
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