Blizzard Sues Starcraft II Cheat Creators Under Dubious Copyright Theory

from the fleeting-copies dept

Tue, Oct 19th 2010 1:27pm — Mike Masnick

Video game company Blizzard often appears to be a study in contrasts. At times, it seems to recognize the changing nature of the technology landscape, embracing scarcities, giving people reasons to buy and even coming out against DRM. But, at the same time, it tried to retroactively ban anonymity in its forums, and has been notoriously litigious, even going after organizations who promote its games.

However, perhaps the most troubling (and highest profile) issue involving Blizzard is its lawsuit against a guy who made a bot for doing things within World of Warcraft. While we recognize that such things can be used to "cheat," the problem was Blizzard's attempt (successful so far) to drastically stretch the meaning and intent of copyright law, to suggest that making such a bot infringes on its copyright. Beyond the basic questions of how the decision in the case was at odds with the basic concepts of the First Sale doctrine, the real problem was that nothing the bot does actually violates copyright law. The judge had to seriously twist both the letter and spirit of copyright law to come to that conclusion (and if you don't want my analysis on it, try copyright expert William Patry's, who noted):

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. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. 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.

While the appeal in that case is still ongoing, it appears that Blizzard is using that precedent to go after more folks who have made tools for "cheating." The company recently banned thousands of players from Starcraft II for allegedly using such cheat codes, but reader Jay was the first of a bunch of you to point out that it's also suing three creators of cheat codes using the same dubious claims of copyright infringement.

Now, let me make it quite clear: I completely understand why Blizzard and many players of Blizzard games hate cheat codes and find them unfair and damaging to the overall gameplay. However, even if you think such cheats and hacks are the most evil thing out there, you have to admit that it's no excuse to misuse copyright law to punish the makers of those cheats, knowing that the end result could be precedent that negatively impacts all sorts of other things online. So what is Blizzard claiming specifically? Well, to make this a "copyright" issue, they're claiming that:

When users of the Hacks download, install, and use the Hacks, they copy StarCraft II copyrighted content into their computer's RAM in excess of the scope of their limited license, as set forth in the EULA and ToU, and create derivative works of StarCraft II.

Pick apart that sentence carefully. In order to make this a copyright issue, Blizzard is claiming that (1) running a cheat code violates the EULA and the ToU (the fine print no one read) and (2) once you've violated the EULA and the terms of service, you no longer have a license for the game ("excess of the scope of their limited license") and, because of that (3) when you copy aspects of the game in a fleeting manner into the computer's RAM, it violates the copyright.

Hopefully, you can see how problematic this is. Thankfully, for now, other cases (in a different circuit, I believe, so non-binding on the Blizzard cases) have found that fleeting copies in RAM are not considered infringing, and hopefully the courts here agree, and toss out this kind of tortured logic that could lead to all sorts of other ridiculous rulings. If Blizzard is allowed to make these claims, then any software/content company that offers you a long license, where you don't obey each and every claim, can say you've infringed on their copyright and owe huge statutory damages.

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Filed Under: abuse, copyright, eula, starcraft ii, tou
Companies: activision, blizzard

54 Comments

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Jay (profile), 19 Oct 2010 @ 1:43pm

A little more to add.
It should also be mentioned that the defendants in this case are:

2 Canadians
1 Peruvian

So we, Americans, have a foreign libel counter. But how is it that we can expect these three to actually show up for the CA lawsuit that Blizzard has put forth?

Source
[ link to this | view in thread ]
:Lobo Santo (profile), 19 Oct 2010 @ 1:44pm

Ah Judges,
Siding with good sense one day, bought and paid for on other days.
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TheStupidOne, 19 Oct 2010 @ 1:44pm

Fleeting Copies
Not to mention that if you steam any kind of web content that is "infringing" (think youtube) then you are making such fleeting copies and would be guilty of copyright infringement as well.
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william (profile), 19 Oct 2010 @ 1:46pm

"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."

It just means the court has a WoW account and he's had enough with the cheaters using WoWGlider to beat him in everything.
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william (profile), 19 Oct 2010 @ 1:50pm

Re:
btw, I always maintained that if a game can be played by a bot (or causes player wanting to use a bot), is basically a game with design flaw.

If a bot can play your game, does that make you/players mental level down to a bot?
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Jay (profile), 19 Oct 2010 @ 1:52pm

Re: Re:
You've never played EVE Online, have you?
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Anonymous Coward, 19 Oct 2010 @ 2:06pm

Avast detected this on this page:
Object: http://www.techdirt.com/techdirt.js?v=1855-c248
Infection: HTML:Iframe-inf

Screenshot: http://i.imgur.com/9qddj.png
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Random Guy, 19 Oct 2010 @ 2:06pm

When lawyers meet tech...
Maybe the lawyers had a hard time with a sensible way of legally combating cheat software for Starcraft II(SC II). It is also known as "maphacks" in the Starcraft II community. It modifies the running software to give a player an unfair advantage in online gaming situation. Copyright claims might by dubious but give that information on the very basic operation of a SC II hack to any lawyer he/she most likely conjure up the legal theory in the frame of Copyright Law.
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:Lobo Santo (profile), 19 Oct 2010 @ 2:08pm

Re: Re: BOT-swana!
That's very specist of you!

Maybe some games were made for bots to play and enjoy! Just because a bot doesn't enjoy mentally challenging activity doesn't mean there is anything wrong with its processor--er, I mean, brain!! Please try to show some species sensitivity (to set a good example--for the children).
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kyle clements (profile), 19 Oct 2010 @ 2:33pm

Re: Fleeting Copies
"if you steam any kind of web content that is "infringing" (think youtube) then you are making such fleeting copies and would be guilty of copyright infringement as well."

And if you stream those videos in certain operating systems, the video is actually downloaded to the '/tmp' folder. it's not even a fleeting copy, its a download (one that is erased when you leave the page). Copying that file to a another folder, where it will not disappear when you leave the page, is trivial.

So, is watching a video in linux infringement?

Or are the powers that be going to admit that computers need to copy things to function, and treating bits as if they were atoms is just stupid?
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TPBer (profile), 19 Oct 2010 @ 2:44pm

Treating bits as if they were atoms is just stupid
Isn't that what all this so called "Pirating" is about. Like i really stole 10+Tb of atoms :)

I think i would need several storage units if this were the case.
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NAMELESS.ONE, 19 Oct 2010 @ 2:50pm

HEY BLIZZARD
where the fuck is diablo 3
.....and i'll add i bought 2 and im not gonna buy 3 if you require a net connection to play....suing for cheats is retarded PERIOD
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Anonymous Coward, 19 Oct 2010 @ 2:58pm

Re: Re:
Just because a moron can ride a bike, does that mean you're a moron if you ride a bike?
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Mike Masnick (profile), 19 Oct 2010 @ 3:08pm

Re:
Avast detected this on this page:
Object: http://www.techdirt.com/techdirt.js?v=1855-c248
Infection: HTML:Iframe-inf

Thanks, we're well aware of this.

For future reference, please do not use comment threads to report off-topic things like this. The contact us link up top, or Twitter are the best ways to communicate such issues.
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Anonymous Coward, 19 Oct 2010 @ 3:29pm

Re: Re:
Will do ;)
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Anonymous Coward, 19 Oct 2010 @ 3:34pm

Re:
ohh man, Ubuntu.com
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nasch (profile), 19 Oct 2010 @ 3:48pm

Re: Re: Re:
No, but I wouldn't buy a bike and then buy a robot to ride the bike for me so I don't have to bother with it. If a leisure activity is boring or unpleasant enough to want to find a way to not do it... why not just find something more fun to do, rather than finding a computer program to do the activity for you?
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Marcus Carab (profile), 19 Oct 2010 @ 3:55pm

Re: Fleeting Copies
Actually as far as I know that very thing has come up in Canadian courts. Our silly levee system has created a dumb legal contradiction whereby infringing media is acceptable if and only if it is stored on a CD (which has a levee here) but not a DVD, hard drive, flash drive or iPod (all of which don't).

So that, of course, raised the question of if it's okay to download a file and immediately transfer it to CD - which currently is considered legal here. But since the file is first on your hard drive, it creates a grey area where you are infringing and then no longer infringing. Of course that leads to your question: what about media that is streamed and only exists in RAM or a temporary file? At the moment, we don't have a clear answer on that one...

(it's possible - nay, likely - that I've gotten some details wrong. I'm trying to find the sources I originally had on this to no avail, so if anyone can correct or clarify what I've said please do...)
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Marcus Carab (profile), 19 Oct 2010 @ 4:02pm

Re: Re:
I somewhat agree, with a caveat for the creator of a bot. I can totally see the appeal of trying to devise rudimentary AIs that can compete with human players in a popular game - and it seems like it would be a challenging endeavour.
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Jimmy, 19 Oct 2010 @ 4:16pm

Re:
I really can't agree with that statement on any level. If you can bot easily in a game, all it shows is that the rules governing the gameplay are not overly complicated.

Checkers, anyone?
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Anonymous Coward, 19 Oct 2010 @ 4:24pm

Don't blame blizzard.
Don't blame blizzard. They have no choice. The games fanbase' demands blizzard exhaust every avenue of defense for it's community.

If you want to blame somebody, the fault lies solely on the judges.
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Anonymous Coward, 19 Oct 2010 @ 4:24pm

Re: Re:
I'd agree to the level of saying that if any part of your gameplay makes any significant number* of players wish they could bot it then you have serious flaws with your game.

*here a significant number is defined as enough people that the botting creates issues with the rest of the people.
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Anonymous Coward, 19 Oct 2010 @ 5:00pm

(the fine print no one read)
" (the fine print no one read)" And there's the issue.No one read it..but everyone checks the box agreeing to it. Self induced ignorance is bliss?
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DJ (profile), 19 Oct 2010 @ 5:22pm

Re: Ah Judges,
No. If a judge is ever compromised on an issue he/she should be considered to ALWAYS be compromised. Thus: bought and paid for at all times.

Those who stick to the strict and LITERAL meaning of the law: good on ya!
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DJ (profile), 19 Oct 2010 @ 5:27pm

Re: Re: Re: Re:
I'd have to say that that's the best anti-bot argument ever.
[ link to this | view in thread ]
DJ (profile), 19 Oct 2010 @ 5:29pm

Re: Re: Re:
The actual CREATION of the bot, yes, but then I refer you to nasch's comment (above)
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DJ (profile), 19 Oct 2010 @ 5:33pm

Re: When lawyers meet tech...
"Maybe the lawyers had a hard time with a sensible way of legally combating cheat software"

yeah that's kind of the point of this. They couldn't LEGALLY combat cheating software, so they found a loophole to make it look like they did.
[ link to this | view in thread ]
DJ (profile), 19 Oct 2010 @ 5:37pm

Re: Don't blame blizzard.
"the fault lies solely on the judges."

No.

Should they even bother ruling in such an apparently frivolously constructed case? No they shouldn't, but that doesn't place blame SOLELY on their shoulders.
For example, when I was a kid and my brother hit me, I hit him back, and he went and cried to Mom, who subsequently punished me, was my mom SOLELY to blame? Or should my brother have been taught some manners as well?
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DJ (profile), 19 Oct 2010 @ 5:40pm

Re: (the fine print no one read)
Verbal agreements aren't legally binding in the U.S.

I know this has also been hotly contested in the past, but I still equate a mouse click with a verbal agreement.
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Jay (profile), 19 Oct 2010 @ 6:06pm

Re: Re: (the fine print no one read)
The 9th District First Sale Doctrine debacle disagrees unfortunately.
[ link to this | view in thread ]
Anonymous Coward, 19 Oct 2010 @ 7:29pm

Re: Re:
Most bots in World of Warcraft do not actually play the game per say. They are used by gold farmers who then work the game to make money off of it. I don't think there is a bot that can handle the truly challenging aspects of the game.
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Montezuma (profile), 19 Oct 2010 @ 7:40pm

One issues that I have never understood is why any court of law thought that there was any level or reasonableness to bringing cheaters of a game(or the creators of the cheat software) into a courtroom. We are talking about a game, of which has no bearing on real life, in any way, shape, or form, and seeing how there are far more important issues that our courts should be dealing with, the courts should have told Blizzard to go fuck themselves.

Beyond that, it is high time that the courts stop siding with companies and these "shrink-wrap EULAs and ToS". It is time to start realizing that the customers OWN the software that we purchase(which we do) and not that companies are "licensing" the software we pay for, to us. Companies are taking too many liberties today, and the U.S. Government, as well as state governments, are letting them do this.

I really enjoy Blizzard games, but I am to the point that I will never give Blizzard another dime. Until everyone else that is against their actions does this, then nothing will change. Everyone that continues to give them money has no right to complain, until they stop giving them support.

No one ever listens, until their pocketbooks are hit.
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Montezuma (profile), 19 Oct 2010 @ 8:10pm

Re: Don't blame blizzard.
Blizzard does not have to do anything that it does not want to.
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Montezuma (profile), 19 Oct 2010 @ 8:13pm

Re: Re: (the fine print no one read)
Verbal agreements are absolutely enforceable in the United States.
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Jay (profile), 19 Oct 2010 @ 9:27pm

Another point of contention - Bobby Kotick
I love video games just as much as the next person. But the reason why Blizzard seems to be changing its aliances is because of the CEO that they have in charge.

Observe

Thing is, if you look up Kotick, you'll notice that he is demonized for quite a few reasons. 1) He finds ways to monetize everything he gets his hands on. 2) How he runs the video game business is basically sequel upon sequel upon sequel. 3) The infamous "taking fun out of games" speech (September 15, 2009)

Rather than demonize Kotick further, I just leave it to you all to read about him yourselves.
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Mike Masnick (profile), 19 Oct 2010 @ 10:22pm

Re: Re: (the fine print no one read)
Verbal agreements aren't legally binding in the U.S.

Yes they are. Verbal agreements may be tougher to enforce, and there are some issues related to them, but if you can substantiate the agreement, and the verbal agreement has the elements of a contract, it's absolutely legally binding in the US.
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ajamsandwich (profile), 20 Oct 2010 @ 1:05am

Its madness
Well EULA and TOC are stupid anyway, you can't run software until your have accepted them, but hey you also can't return the software if you don't agree to them as most companies especally the online purchases do not allow refunds for purchases. So my issue is how can you enforce a rule set or licence if you have no other choice but to accept it or be out of pocket? It's all one way!
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Liquid (profile), 20 Oct 2010 @ 5:16am

Re: Re: Don't blame blizzard.
Ah but if they want to keep their play base growing, and continue to make money off the game. They don't want people to start hating the game, because it's unplayable with all the bots, gold farmers, etc... They have to do what ever is necessary to keep that income flowing.

Honestly would you really want to play another game from the same company if you played a previous game, and it went to crap? All because the developer wouldn't listen to the player base when they were unhappy. When it comes to video game the ones that listen to its customers, and make the changes are they ones who keeps making games people want to play.
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Liquid (profile), 20 Oct 2010 @ 5:18am

Re: Re: (the fine print no one read)
The click of the box at the end of the EULA is just like a hand shake.
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Anonymous Coward, 20 Oct 2010 @ 5:55am

Re: Re: Fleeting Copies
Even physical stuff needs copies to function. When you read a magazine, for instance, its information content is constantly being copied into photons, which then strike your eyes and are copied into electrochemical signals in your nervous system.
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Anonymous Coward, 20 Oct 2010 @ 8:09am

*wishes Blizz put that much effort into 4.0.1*
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Michael Donnelly, 20 Oct 2010 @ 8:17am

Copyright should protect those guys, not hurt them.
It's just another sign of how badly out of sync copyright law and technology are. The original purpose of the Copyright Act is a distant memory at this point: companies use it to prop up all kinds of bad business (and game) models. There's always a copy somewhere and, more importantly, you don't need to show damages.

That's the real scary part. Blizzard doesn't need to show that Glider or the SC2 radar or any of those products hurt them. Amend the EULA, file paperwork, seek huge statutory damages.

It's particularly obvious in the SC2 radar because the tools are all open source: Blizzard is using the Copyright Act to *prevent* the free flow of perfectly legal (sans EULA, authored by Blizzard) creative work. It doesn't get any more disgusting than that.

Disclaimer: I am very biased in this case, as easily noted by my name.
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Killer_Tofu (profile), 20 Oct 2010 @ 8:40am

Re: Re: Re: Re:
Granted I have never played WoW (hate the idea of pay monthly games), the reason people would do that is to skip the leveling up part to go straight to high end dungeons, which are generally more entertaining.
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Killer_Tofu (profile), 20 Oct 2010 @ 8:48am

Re: Re: Re: Don't blame blizzard.
Your argument makes sense for them to take technical measures to fight back. Taking legal measures still makes them look like assholes.
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Gwiz, 20 Oct 2010 @ 9:52am

Re: Re: Re: Re:
If a leisure activity is boring or unpleasant enough to want to find a way to not do it... why not just find something more fun to do, rather than finding a computer program to do the activity for you?

What if the fun leisurely thing you like to do is programming bots?
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Anonymous Coward, 20 Oct 2010 @ 11:28am

Montezuma you are incredibly ignorant
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nasch (profile), 20 Oct 2010 @ 12:49pm

Re: Re: Re: Re: Re:
I am hoping you are going for funny, but just in case... I was talking about users of the bots, not creators of the bots. Was that not obvious?
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nasch (profile), 20 Oct 2010 @ 12:50pm

Re: Re: Re: Re: Re:
That still points to a flawed game. Basically you're saying "only the beginning part is stupid and boring, not the whole thing." Not that I care mind you, if people use bots. I just look for games that are actually fun to play all the way through.
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Anonymous Coward, 20 Oct 2010 @ 2:51pm

The district court opinion in Vernor, which both your post and Patry's refer to, was recently reversed by the 9th Circuit. While that doesn't drastically change the Wowglider case (where the court rejected the Vernor view anyway), or make Blizzard's actions any better, it may have some bearing on Blizzard's strategy.
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Michael Donnelly, 20 Oct 2010 @ 4:38pm

Vernor has a huge effect on MDY v Blizzard, actually.
Since the meat of their (er, my) copyright defense hinged on section 117 of the Copyright Act: one cannot infringe copyright in a piece of software by copying it to RAM if that copy is an essential step in using the software. This applies to an "owner of a copy", just like section 109 with regards to selling.

However, Vernor's precedent will probably mean that WoW customers do not own their copies of the game and thus are not protected by section 117. This is deeply troubling for any integration with shrink-wrap software, as it means the developers of the software can turn add-on developers into copyright infringers with the stroke of a pen.

Just, you know, saying.
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Killer_Tofu (profile), 21 Oct 2010 @ 12:14pm

Re: Re: Re: Re: Re: Re:
You have a valid point. I do not think I have ever played any type of MMO that was fun all the way through except Guild Wars. And friends have loaned me accounts (to try to get me to sign up) or I have watched them play quite a few MMOs.
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lol, 25 Oct 2010 @ 11:06am

I think you forgot to mention in your "article" that the creators of these hacks were selling them for money. It's no different than selling bootleg movies, it's copyright infringement,they are not suing these people for screwing with ram (even though that was such a huge part of your article) So before you go and post something stupid on the internet again, make sure you got everything together before you start talking out the side of your neck.
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nasch (profile), 26 Oct 2010 @ 8:28am

Re:
Selling it for money has no bearing on whether it was copyright infringement (except for a fair use test, which is not the situation here). Try again.
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DanZee (profile), 23 Apr 2012 @ 9:15am

Dictate Copyright
Obviously companies want the right to have copyright be anything they dictate it to be. We're just fighting the inevitable.
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