Some Good, Some Bad In New Ruling On Whether Or Not WoW Bot Infringes Copyright

from the no-contributory-infringement dept

Tue, Dec 14th 2010 2:05pm — Mike Masnick

It's quite a week for First Sale issues in copyright (and it's only Tuesday!). We already had the Supreme Court's non-decision stalemate on the Costco/Omega case, and now we've got another of the trifecta of first sale cases in the 9th Circuit. As you may recall, that court is considering three rather important cases concerning first sale rights, with the first one (Vernor v. Autodesk) already decided such that you no longer actually own most of the software you thought you bought.

Today, the court came out with its ruling in the MDY vs. Blizzard case, which as we noted had a really troubling district court ruling. This case was controversial because it involved a bot maker that let people automate certain tasks in World of Warcraft. Many people sided with Blizzard in this case because they just hate bots and people who use them -- but I don't think they considered the larger copyright issues raised by the original ruling, which said the bot software itself, called Glider, infringed on Blizzard's copyright. If you want a thorough understanding of how tortured the court's logic was in that case, just read William Patry's summary at the time, where he notes that absolutely nothing Glider did appeared to violate Blizzard's exclusive rights as laid out in the Copyright Act, so the judge effectively made stuff up -- saying that because using the bot violates the terms of service, it makes the "copy" of WoW (even if it was legally purchased) "unauthorized," and thus infringing. Thus, according to the ruling, Glider was responsible for contributory copyright infringement.

Thankfully, the appeals court appears to have walked back most of that part of the ruling. While it tips its cap to the Vernor decision, and says that you don't own your copy of WoW, but merely license it, it says that just because the Glider software might violate the terms of service, it doesn't mean that copyright law is automatically violated. It points out that there are lots of ways you can violate a software license that have nothing, whatsoever, to do with copyright's exclusive rights, and thus, just violating a terms of service shouldn't mean you violate copyright law. Thus, using Glider does not directly infringe on Blizzard's copyright (in this instance), and therefore, there's no contributory infringement on MDY's part, because there's no direct infringement that it could contribute to:

Were we to hold otherwise, Blizzard -- or any software copyright holder -- could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player's abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player's computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.

That said, MDY still runs into trouble due to the (you guessed it) ridiculous anti-circumvention clause in the DMCA. The court finds that MDY effectively "trafficked" in circumvention tools with Glider, in getting around Blizzard's anti-bot software, called Warden. Here, the ruling gets right back to being troubling. While it discusses the Federal Circuit's ruling that said third party providers of garage door openers were not violating the DMCA by getting around anti-circumvention tools in garage opener technology, because no copyright was violated beyond the circumvention, it says it chooses to ignore that decision -- saying it doesn't believe Congress intended the DMCA to work that way. Now, it's true that this court is under no obligation to follow that ruling, it's still troubling.

There is a further discussion about exactly which parts of the DMCA are and are not violated here, which begins to get really down in the weeds, so I'll skip the discussion on that for now, but you can read the entire ruling after the jump.

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Filed Under: anti-circumvention, bots, copyright, dmca, first sale, glider, world of warcraft
Companies: blizzard, mdy

14 Comments

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iamtheky (profile), 14 Dec 2010 @ 2:29pm

someone really needs to whip out an old school system and a copy of game genie, an entity I assume that can no longer function legally. Then explain to them very slowly what exactly they are talking about, and how ridiculous their kids think they are for sitting around legislating cheating at video games.
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Anonymous Coward, 14 Dec 2010 @ 2:32pm

What do you find "troubling"?
While it discusses the Federal Circuit's ruling that said third party providers of garage door openers were not violating the DMCA by getting around anti-circumvention tools in garage opener technology, because no copyright was violated beyond the circumvention, it says it chooses to ignore that decision -- saying it doesn't believe Congress intended the DMCA to work that way. Now, it's true that this court is under no obligation to follow that ruling, it's still troubling.

The opinion spends 5 pages going into great detail about why the Federal Circuit's interpretation is unsupported by the statutory text or the legislative history of the DMCA and is instead based on faulty policy considerations.

Do you disagree with this court's reasoning, or is it just the outcome you find troubling?

There are plenty of legitimate reasons that one might take issue with the DMCA, but this opinion seems to quite clearly be a sound application of the law as it was written (and intended).
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:Lobo Santo (profile), 14 Dec 2010 @ 2:42pm

Re: What do you find "troubling"?
...of the law as it was written (and intended) by the paid-for legislators, shills of the media regime.
(There, fixed it for ya.)

Enforcing an unjust law is not justice.
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Tom Landry (profile), 14 Dec 2010 @ 3:51pm

Most of this will be a non-issue in a few more years once cloud gaming comes into its own.

Some might not like that idea but I look forward to not having to buy proprietary hardware (ie; consoles, expensive video cards) and just cough up a subscription fee for the time I play.
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Anonymous Coward, 14 Dec 2010 @ 4:53pm

Lock It Up and Throw Away the Key
. . . unsupported by the statutory text or the legislative history of the DMCA and is instead based on faulty policy considerations.
Sure, if you consider fair use (and the First Amendment, which fair use supposedly enables) "faulty policy." I much prefer the Federal Circuit's take in its Chamberlain Group opinion (http://ftp.resource.org/courts.gov/c/F3/381381.F3d.1178.04-1118.html). The Ninth Circuit panel cherry-picked legislative history to find what it wanted to find. Even more than disagreeing with the Ninth's reasoning, though, I find the result troubling. So much for sections 107 through 122 of the Copyright Act... in the Ninth Circuit (read: Hollywood), now you can lock it up, and throw away the key.
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Darryl, 14 Dec 2010 @ 5:11pm

Its ok to use loopholes if Mike likes you, but not if he does not..
Its funny, I always thought Mike, that you were against using loopholes to worm out of your responsibilities.

does that only apply when they can use the loopholes to "give it to the man"?

Of course, you do scream like a banchee when it applied the other way.

But we've come to expect that level of bias from you mike, it's ok, really, we understand...

You have investors to please, profit to make, advertisers you have to get page hits for.. money money money...

Its the daily grind isn't it mike ??? every day the same old thing, "what facts can a twist and wapr for my own gains today".. lets see what slashdot can do for my source".

or is it..

"who can I attack today, that will get me as many clickers as possible to make all that nice money, google like to give me"..

Mike, how do you feel advertising on your web site lots of things you 'claim' you are HIGHLY AGAINST ??

Do it bother you, at the same time as you are arguing against those groups, you are promoting those very same groups on your web site..

THOSE GROUPS THAT YOU HATE ARE PAYING YOU LOL

To advertise on your web site... you know how stupid that looks ?? Do you care ???

I guess you dont care, as long as you get the money...

We know where you heart is Mike,, its in your wallet..
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The Mighty Buzzard (profile), 14 Dec 2010 @ 5:28pm

Re:
Absolutely. Why would anyone want to pay extra money to own a game with insanely better and faster graphics that plays fine with a bad/no Internet connection when they could pay a quarter as much every single month of the year?

Cloud gaming may have a place but it's not going to have a lot of overlap with console and non-trivial PC gaming.
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The Mighty Buzzard (profile), 14 Dec 2010 @ 5:47pm

Re: Its ok to use loopholes if Mike likes you, but not if he does not..
THOSE GROUPS THAT YOU HATE ARE PAYING YOU

Which is fairly funny, all things considered.
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DandonTRJ (profile), 14 Dec 2010 @ 6:10pm

Re: Re: What do you find "troubling"?
But unless the law violates a fundamental right, it's not the court's place to subvert the legislature. I'm no fan of the DMCA, but I also think the federal circuit overstepped its bounds in interpreting the law so contrary to its intent.
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David Liu (profile), 14 Dec 2010 @ 6:12pm

Re: Re: Its ok to use loopholes if Mike likes you, but not if he does not..
Then again, everything that comes out of his mouth is pretty funny.
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Anonymous Coward, 14 Dec 2010 @ 6:21pm

im not buying anohter game until i can then own it
PISS on the game industry then. i'll pirate them. cap throttle or law, shall not stop it.
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Montezuma (profile), 14 Dec 2010 @ 7:01pm

Re:
Well, good for you if you choose to get screwed over and not take control of something that you own. I do not give a fuck what you think. When I pay for a product, regardless of whether or not it a tangible good or not, I expect that I own that product until I sell it or give it away. Who are the courts to think they can dictate to me that I do not own certain products that I purchased?

The 9th Circuit Court of Appeals is so bat shit crazy that it is impossible to figure out how it will rule on any matter before it. It is high time that the U.S. Government abort that whole court and bring in judges that will follow the goddamn U.S. Constitution and not the special interest they support.
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dandover (profile), 15 Dec 2010 @ 6:40am

What might this mean for the GPL?
If I correctly understand this ruling, the idea is that because the use of "bots" is not something covered by copyright and, is in fact, not even a copyright-related concept, then using a "bot" can therefore not be a copyright violation. At first, this might sound sensible.

However, the GPL conditions redistribution of modified versions on inclusion of source code. Inclusion or omission of "source code" is also not something covered by copyright. Indeed, "source code" is not even a copyright-related concept. So, following the 9th circuit's logic, would a judge rule that failing to distribute source code of a modified GPLed program would not be a copyright violation, but merely a breach of contract?
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H Klang (profile), 3 Oct 2012 @ 11:39pm

Re: What might this mean for the GPL?
Since it involves a third party withholding only the modifications he has made, I don't see how that could be a breach of the original copyright. After all, the modifications were not present in the original copyrighted code. They belong to the modifier.

Instead, it is failing to deliver the promised consideration, namely to make the new code (the modifications) publicly available in return for the use of the original code. Therefore it is a breach of contract, as you say.

Of course, copyright law is the basis of the ownership rights of the original software maker in his code.

So here are my two questions:

(1) Does copyright law merely create and define an ownership right, to be enforced by already-existing law concerning property, or does it have specific penalties?

(These penalties give meaning to "violation of copyright" as a specific offence distinct from simply failing to fulfill a contract.)

(2) In law (outside of copyright), when does failing to fulfill a contract, or not paying for something you're supposed to pay for, become a crime rather than a civil matter?
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