Ownership Or License: The Difference Matters

from the quantum-bullshit dept

Mon, Sep 28th 2009 5:59am — Mike Masnick

Those who rely on copyright like to do a neat little trick at times. When it's convenient, they like to claim that what they're offering is no different than a physical good. In such situations, if you make a copy, they claim that you "stole" it, and that it's "no different" that walking into a store and taking something off the shelf without paying for it. Yet, at other times, if you point out the sorts of restrictions that would lead to -- such as no control over the product post-sale -- suddenly they change their tune. You didn't buy the product, you merely "licensed" it, and thus they could post sale restrictions on things. If you buy a chair, and then build a replica yourself, that's perfectly legal. But copyright holders claim that's not the case when it comes to products covered by copyright -- because they insist that it's "licensed" not "owned."

Luckily, the courts have long pushed back on this attempt by copyright holders to extend copyright's power beyond what happens with physical goods. That's why, for example, we have a right to first sale, allowing you to resell a book. The copyright holder cannot claim that you only "licensed" the book, rather than bought it, so you are, in fact, allowed to resell it. But the law isn't entirely clear on all aspects of this, and software "licensing" is one key area where there are some problems.

A few years back, Blizzard sued the maker of a bot, the Glider bot by MDY, claiming that the software violated its copyright. Now, even many who are against abuses of copyright, emotionally started to side with Blizzard here, due to what the bot allowed: it effectively allowed cheating, by automating many repetitive tasks, to let users "level up" more quickly. But, if you get past that element, the case has important implications for copyright law, and whether or not the software you buy is really purchased... or merely licensed.

The district court ruling was incredibly problematic. Nothing the guy actually did with the bot software appears to violate copyright law. Basically, the court just decided that it didn't like what the guy did, and thus it used copyright law to shut him down, though it used rather tortured reasoning. This sets an incredibly bad precedent and seems entirely at odds with the purpose of copyright law itself.

The case is now being appealed, and Public Knowledge has filed an amicus brief while the EFF explains what's at stake:

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

Hopefully, the Appeals Court recognizes this. Copyright owners shouldn't be able to play a quantum game of calling something "owned" when it suits them or "licensed" at other times when it suits them.

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Filed Under: bots, copyright, first sale, glider, license, ownership, world of warcraft
Companies: blizzard, mdy

42 Comments

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Steve R. (profile), 28 Sep 2009 @ 6:14am

The Very Concept of "Sale" has been Under Attack
It is time to put an end to the end-run of claiming that products that you bought were merely licensed and that your use of the product is at the sufferance of the product maker.

When you buy a product you acquire a property right to use that product as you wish.
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Richard (profile), 28 Sep 2009 @ 6:29am

Advertising Speak
How often have you heard phrases like "own it on DVD" in an advert.
Actually that phrase suggests to me that they are offering to sell you the copyright not just the DVD. (They don't say "own a DVD with it on".)

Now that would make an interesting trades descriptions case wouldn't it?
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Sam I Am, 28 Sep 2009 @ 6:31am

Dazed and confused
"If you buy a chair, and then build a replica yourself, that's perfectly legal."

Totally, utterly wrong. Legally wrong, morally wrong, ethically wrong. Want another replica? BUY another replica. Or......The IDEA of a chair is perfectly fair game. Design and build YOUR own chair. But replicate an existing one? A classic design perhaps? You have no legal leg to stand on. Try substituting a fashion design, or an automobile in this case, making perfect "replicas" of Chevrolets, see how far you get with that.
More dirt amongst the tech, alas.
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Jeffry Houser, 28 Sep 2009 @ 6:39am

Re: The Very Concept of "Sale" has been Under Attack
I'm not sure that is entirely correct. If you buy a gun that does not give you the 'right' to shoot other people.

Although, it is not the gun manufacturers placing that restriction on you so perhaps the analogy isn't perfect here.
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Shawn (profile), 28 Sep 2009 @ 6:39am

Re: Dazed and confused
no you are a tad confused I think. You can build a thousand replicas of a chair or a car and there will not any legal issues. Start selling those replicas and the lawsuits start. Start selling those replicas as the original and it is a feeding frenzy.
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Mark B (profile), 28 Sep 2009 @ 6:43am

Not dazed or confused
@Sam I Am

You are wrong. It is perfectly legal to build an exact replica of a chair you bought. However it is not legal for you to sell that chair or give it away to anybody else.
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Headbhang (profile), 28 Sep 2009 @ 6:44am

Re: Dazed and confused
He's not talking about building a replica and going on to selling it. He's merely talking about building a replica for yourself. If that's against the law, then fuck the law and if that's against your morals, then fuck your morals. Definitely not against mine.
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Steve R. (profile), 28 Sep 2009 @ 6:45am

Re: Dazed and confused
You are quite confused. If I buy a CD, I should be able to copy it onto my MP3 Player as I have acquired the property right to use that music. If I buy a Play Station, I have a right to hack it as I have acquired the property right to use the play station. If I buy a cell phone, I have a right to jailbreak it because I have acquired the property right to that cell phone.

I also have the right to develop my own applications to run on any devices that I buy.
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Steve R. (profile), 28 Sep 2009 @ 6:48am

Re: Re: The Very Concept of "Sale" has been Under Attack
Acquiring a property right to use a product does not translate into using that product in an illegal manner. I can buy a car, but I will still get a speeding ticket if I drive to fast.
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Comboman (profile), 28 Sep 2009 @ 6:53am

Blizzard should change strategy
WOW has two components: software that runs locally, and a private network. The local software is owned by the user and they can modify it if they wish without violating copyright. However, when they connect their modified software to Blizzard's private network, they are violating the terms-of-use of that network and Blizzard is within their rights to kick them off. There is no need to invoke copyright law.
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herodotus (profile), 28 Sep 2009 @ 6:56am

This has long been a subject of great contention in audio software circles. Sellers of sample libraries routinely have EULAs that prohibit users from selling them, or in some cases even from giving them away.

This lengthy thread at kvr is just one of hundreds concerning such policies and the anger they can create. The use of challenge/response copy protection, which gives the licensor total power over these arrangements, is also the subject of regularly reoccurring controversies.
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Misanthropist (profile), 28 Sep 2009 @ 6:56am

Re: Dazed and confused
wow, you are 100% in the wrong! Great Job getting it all backwards!
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Designerfx (profile), 28 Sep 2009 @ 6:56am

Re: Re: The Very Concept of "Sale" has been Under Attack
specific usage has nothing to do with ownership, the two are not related.

You indeed do have the choice to do what you want with a gun you purchase, shooting people is simply not lawful.

However, guns are off topic. Lets stick to software, shall we?

You buy x software. Why can't you do *WHATEVER YOU WANT* with it on your own? That is the issue here. We have DMCA issues among other things that are causing issues with this.
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NullOp, 28 Sep 2009 @ 7:02am

Ownership...
Touchy subject, this is. The point being how do we maximize profit and minimize liability? We want to get as close as we can to the "Something for Nothing" business model. That being, we get something and you get nothing! Insurance is the perfect example. All you get is a piece of paper and a promise. Oh, and possibly screwed, no dinner and no movie!
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Richard (profile), 28 Sep 2009 @ 7:04am

Re: Re: Re: The Very Concept of "Sale" has been Under Attack
Not if you drive on a private road you won't. The speed limit relates to the use of the public shared infrastructure - not to your car.
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Another AC, 28 Sep 2009 @ 7:13am

Re: Blizzard should change strategy
They have been doing this but it is becoming too much of a pain in the ass, especially when they end up banning legit players and get the backlash.

They are trying to go to the source of one of, if not the largest wow bot maker.
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Designerfx (profile), 28 Sep 2009 @ 7:23am

Re: Dazed and confused
uh, legally, morally, ethically, it's correct. There is no law on the books that prevents you from replicating anything, making a profit off it is another story.

Lets go one by one.

Legally: A judge would throw you out of court faster than I could blink when they ask you to prove damages and you have none, other than from loss of publicity from opening a lawsuit aka streisand effect. They are not infringing your copy-right in any sense.

Morally: you should be *PROUD*! Someone likes your stuff enough that they are inspired to duplicate it themselves (not eat into your profits). Hell, that's a success story to put up on every advertisement possible if I ever heard one.

Ethically: see Morals (they're close enough in concepts).

Most people do take pride in making perfect replicas of cars, in fact there's a whole business made out of it irrespective of Chevy's consent. If you mean trademark wise, as long as someone isn't claiming it's a Chevy when it's not, then your point is moot. After all, the VIN system is designed to deal with that.
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Michial Thompson, 28 Sep 2009 @ 7:24am

In Blizzards case you overlooked one small detail
You overlooked or simply neglected to mention it mikee, but in the case of Blizzard their Servers were being used by the customer, and that server time was leased/licensed to the user.

Meaning that they do have a right to control what software accesses their servers....
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Richard (profile), 28 Sep 2009 @ 7:32am

Re: Not dazed or confused
You are wrong. It is perfectly legal to build an exact replica of a chair you bought. However it is not legal for you to sell that chair or give it away to anybody else.
Giving it away is probably OK, as is lending the chair to someone else so they can make a copy for themselves. Also selling is OK provided it is a fairly "generic" copy and you don't try to pretend it was made by the original manufacturer.

In fact as far as I can remember it would have to be a registered design in order for there to be any problem.

Of course furniture manufacturers are completely unfazed by private copying because they know that you can't compete with them cost wise. Given a replicator - then things might change.
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Richard (profile), 28 Sep 2009 @ 7:36am

Re: Dazed and confused
But replicate an existing one? A classic design perhaps? You have no legal leg to stand on./
Au contraire the classic designs are in the public domain - and even when they were new no one minded copying.
Chippendale even published a book of his designs so that more people could copy them. It didn't seem to harm his business see:

http://en.wikipedia.org/wiki/Thomas_Chippendale
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Designerfx (profile), 28 Sep 2009 @ 7:40am

Re: In Blizzards case you overlooked one small detail
Uh?

I'm not sure where you come across with this idea, but glider doesn't access their servers. It was just a very smart bot program. Bots don't run on the server, they run on the consumer/host's pc. This was the crux of the situation and why throwing it at copyright was an asinine call by the judge.
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Anonymous Coward, 28 Sep 2009 @ 7:43am

Re: Re: Dazed and confused
this whole thread is the blind leading the blind.

sale is irrelevant. if there's some IP right protecting the chair design you can't copy it. if you agree in the sales contract that you won't copy it, you can't copy it. otherwise, you're allowed to copy it.

sale only has an effect on what punishment you get if you made the copy unlawfully.
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Richard (profile), 28 Sep 2009 @ 7:45am

Re: Blizzard should change strategy
Blizzard is within their rights to kick them off.

Just like the days when you couldn't have an answering machine on your phone because the phone company controlled what could be connected to the network. In the UK they even banned a device with acoustic coupling and a robotic arm to lift the handset!
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Richard (profile), 28 Sep 2009 @ 8:11am

Re: Blizzard should change strategy
Yes - and a better strategy would be to improve the game so that it didn't reward the kind of mindless activity that a bot can do.

This would be a much better use of their resources than the legal stuff.

More jobs for engineers!
Fewer jobs for lawyers!
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Anonymous Coward, 28 Sep 2009 @ 8:12am

So tell me, if I build a really smart robot that can "see" the screen and send key presses via physical pushing of keys on the keyboard have I broken copyright? This is as close to what the WOW event as you could ask for.

Then I upgrade it and send keystrokes via USB, upgrade one more time so that I see the screen via the display output. Keep upgrading till the end of time...

At what point is it not a robot that can play WOW (or any other game?)

This guy built a software based robot that could see memory values and react based on them, his robot did not modify anything. He should have been sued for breach of contract.
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Designerfx (profile), 28 Sep 2009 @ 8:17am

Re: Re: Blizzard should change strategy
less cash for blizzard (and deservedly so)
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Tex, 28 Sep 2009 @ 8:27am

EULA
Retail sales of Microsoft Office Home and Student Version also have this problem - if you buy it, Microsoft shouldn't be able to restrict your use of it.
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Another AC, 28 Sep 2009 @ 8:28am

Re: Re: Re: Dazed and confused
Just because it is in a contract does not mean it should legally be in a contract or legally enforceable, thats why people go to court over contracts.
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Anonymous Coward, 28 Sep 2009 @ 8:48am

True, but this is a more forward case of contract law, to play the game, you agree not to use software that does several things. He wrote software that went against his contract and thus was likely to be in violation of said contract and receive any punishment allowed by law and contract.

I bet this was used on him, his account was banned for using automated scripting software but blizz wanted him to stop selling his software that had nothing to do with any contract between him and blizzard. He was still charged with the wrong law.
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ECA (profile), 28 Sep 2009 @ 9:14am

Perpetual goods
Lets look at an OLD idea..

If I can make 1 thing and get money from selling it 1,000,000 times..Wouldnt that be great.(Video, audio, BOOK, Software industry)

IF I can make a Disposable product that has to be RE-BOUGHT, over and over and OVER..(Pamper, Kleenx, Toilet paper, Food)

HOW to put BOTH on 1 product. (Auto industry in the last 15 years)

Software should be RELEASED to the FREE market after 5 years.
YOU dont OWN your home. ITS leased from the STATE, thats why you pay TAX.
You DONT own your car, as you have to pay License fees and Tax on your car.
The ONLY thing you REALLY own is debt and taxes..
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Comboman (profile), 28 Sep 2009 @ 9:15am

Re: Re: Re: Dazed and confused
Since when do you have to sign a contract to buy a chair?
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PrometheeFeu (profile), 28 Sep 2009 @ 9:48am

I don't see why Blizzard felt they had to go the copyright route. I mean, this could easily be covered by unauthorized access of a computer system. Or facilitating such or whatever... I mean, Blizzard only grants access to its game servers pursuant to you agreeing to certain conditions. (And being someone who played MMOs, I can tell you that those conditions do enhance the value of the product) And honestly, Blizzard has been pretty good about allowing people to modify its products in order to enhance value.
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Almost Anonymous (profile), 28 Sep 2009 @ 9:51am

Re: In Blizzards case you overlooked one small detail
"""
Meaning that they do have a right to control what software accesses their servers....
"""

I don't think Mike or anyone else on this thread is disputing that, I think it was the mis-managed use of copyright law in question that bothers folks.

As much as I hate the DMCA, I can't understand why Blizzard couldn't make their case that Glide was circumventing their built-in protections...
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Michial Thompson, 28 Sep 2009 @ 10:51am

Why would it not be covered under copyright?
Either he manipulated the memory that the application was running under or more likely manipulated the network packets that were sent to/from the server.

In both cases it would be covered under copyright. In addition he also manipulated how the game was played which would also be under copyright.

The miss using the servers or unauthorized access would fall under criminal law which Blizzard would have to file a case with the city that their servers were in, and hope that the AG for that city/county/state would be willing to escalate it to a federal level and then hope that the feds felt it important enough to go after the guy.

There was no contract preventing him from writing a software package at all, so there is no case under contract law. Their user agreement cannot prevent someone from inventing anything, only control how their system is used.
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Anonymous Coward, 28 Sep 2009 @ 12:25pm

I'm pretty sure that most EULA's or whatever won't stand up to EU consumer protection laws. If I didn´t specifically sign for it before I bought the game, it´s all null and void anyway.

Even if I did sign for it, I'm almost certain I can sue Blizzard an force them to allow me to use a bot like Glider. As long as it helps me while not damaging them, they have no legal ground to stand on. It´d be different if the bot floods their servers or something, but if it just mimicks me playing, they have no case.
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nasch (profile), 28 Sep 2009 @ 12:42pm

Re: Re: Re: Re: The Very Concept of "Sale" has been Under Attack
Steve R said: "Acquiring a property right to use a product does not translate into using that product in an illegal manner."

As a counterexample, you say "Not if you drive on a private road you won't [get a speeding ticket]." Because driving whatever speed you want on private property is not illegal. So it's not a counterexample, and the original point stands.
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Anonymous Coward, 28 Sep 2009 @ 1:29pm

"Either he manipulated the memory that the application was running under or more likely manipulated the network packets that were sent to/from the server."

Reading memory is not manipulating memory (unless this is a cat experiment where reading changes things), He used direct keyboard keypress commands, mouse commands to interface with the system thus defeating blizzards protection system.

There was nothing different from his program and a robot playing the game, its only cheaper to make a script with memory view access then a robot who can see the screen, move the mouse and type on a keyboard.
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Alan Gerow (profile), 28 Sep 2009 @ 1:45pm

Re: Re: The Very Concept of "Sale" has been Under Attack
As my old guitar teacher used to say:

"Your right to swing your arms ends at my face."

A person can buy a gun and shoot it off all that want. As long as they don't interfere with someone else's rights. So, as soon as the bullet injures somebody or their property, then you've violated THEIR rights.
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Anonymous Coward, 28 Sep 2009 @ 5:21pm

Shouldn't this not involve copyright or ownership of the purchased copy, but just the terms under which Blizzard provides access to the servers?
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Daniel, 29 Sep 2009 @ 5:44am

Re: Re: In Blizzards case you overlooked one small detail
I agree with Mike that this should not be a copyright case. Blizzard abused copyright law by doing it.

The {non-copyright} issue here is cheating. Blizzard has every right to determine what is cheating and what isn't.

The problem with this 'bot' is that the cheating is done in a way that Blizzard can't detect on the fly and stop. Hence the use of copyright law to get it shut down.

At 120 billion dollars a month in subscription fees, you think Blizzard could out program this guy.
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Grady, 29 Sep 2009 @ 2:31pm

They may have a case IF
I hate the "if".....

If the bot "Glide" uses any WoW code, they may have a case for copyright infringement, correct?

But, what other means do they have to stop this guy from selling/producing something against there ToS and EULA? If all he did was create this program, but never used it, just sold it for others to use, the only thing they can do is sue for infringement and hope it works.

I don't side with anyone here, it's a lose-lose situation.
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Andrew, 22 Oct 2009 @ 9:11am

Its all BS
You guys don't get it.

Glider did not/does not copy the world of warcraft program. It hasn't stolen any of their ideas. It doesn't hack into it and play it beyond the game's controls. There are no speed hacks, teleportation, etc. It merely plays the game for you. Its a macro program - a lot like some of the stuff I build for work. Doesn't mean I get to skip doing parts, but I have something else doing them for me.

What blizzard is doing is saying you bought this program, but you must play it. You can't let a friend play it even to see what its like at a high level. This isn't about selling the product - its about playing it.

They are requiring that you, the original owner, play it. And if you don't want to - no one else can.

You can sell a car you aren't using. You can sell a book you aren't reading. You can even share the both!

So I've got some skills and I can make a program that can play the game for me. It doesn't play as well as I can, and it doesn't cheat. Its basically my retarded friend who never sleeps. Why can't my retarded sleepless friend play?

Who are they do tell me that he can't play the game I bought.
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