Yet Again, Blizzard Looks To Twist Copyright Law To Use It To Go After Bot Makers It Considers Cheaters

from the that's-NOT-copyright-infringement dept

Thu, Nov 12th 2015 9:31am — Mike Masnick

We've been here before a few times. Back in 2008, video game giant Blizzard initially won a very dangerous ruling against a World of Warcraft bot maker, saying that if (as most software companies do) the End User License Agreement (EULA) says that you've only licensed the product, rather than bought it, then any violation of the EULA can be a violation of copyright law. Copyright expert William Patry, at the time, pointed out how insane such a ruling was:

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.

Thankfully, the Ninth Circuit mostly walked back this ruling (though with a bunch of other problems...), noting (as Patry did in discussing the earlier ruling) that nothing was done that actually violated copyright law. It might violate a contract, but not copyright. This ruling, however, has not stopped Blizzard from continuing to go after bot makers with copyright claims. It went after some Starcraft II cheat creators in 2010. And just last year it went after a few more Starcraft II cheat creators, using the same twisted copyright theory.

And now, as TorrentFreak first pointed out, it's done so yet again -- this time filing a lawsuit against James Enright, who had built up a series of gaming bots for use in World of Warcraft, Diablo and Heroes. And, once again, Blizzard claims that it's a copyright violation, again arguing that violating the EULA is a form of copyright infringement.

Defendants have infringed, and are continuing to infringe, Blizzard’s copyrights by reproducing, adapting, distributing, and/or authorizing others to reproduce, adapt, and distribute copyrighted elements of the Blizzard Games without authorization, in violation of the Copyright Act

More specifically, Blizzard is trying to make this a copyright claim by saying that he violated the EULA by reverse engineering their games to make his bots work. But that's not copyright infringement. It further claims that he's engaged in "tortious interference" because he's convincing other players to break their EULA's with his bots.

Now -- as in past such stories -- it's quite clear that many people are not happy about the use of cheats and bots in these games. It may be absolutely 100% true that they diminish the gaming experience for others and present a real problem for Blizzard. In all likelihood, they probably do violate the EULA that Blizzard uses on those games that forbids such activities.

But that shouldn't make it a copyright violation.

Blizzard can go after them for breach of contract. Or it can cut them off from its service. Or it can change how its games work to try to prevent bots. But that doesn't mean it gets to twist copyright law to use it against something that has absolutely nothing to do with copyright. This seems like yet another case of copyright immigration, where copyright law is used to go after "some bad thing" because it's such a powerful law with such powerful remedies. Blizzard has been doing this for nearly a decade now, and it's high time a court told them to knock it off.

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Filed Under: bots, cheats, copyright, diablo, eula, james enright, starcraft, world of warcraft
Companies: blizzard

23 Comments

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CFV, 12 Nov 2015 @ 10:04am

100% genuine question. How is making a bot that interacts with the game's internals not a derivative work? I make software for a living, and have been shunning GPL licensed libraries for that specific reason.
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- Anonymous Coward, 12 Nov 2015 @ 10:19am
  
  Re:
  100% genuine question. How is making a bot that interacts with the game's internals not a derivative work?
  
  Because it is an application that interacts with the game, it is a distinct work, just like a commercial application on Linux, or a commentary on a book.
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- Anonymous Coward, 12 Nov 2015 @ 10:30am
  
  Re:
  100% genuine question. How is making a bot that interacts with the game's internals not a derivative work?
  
  If that were true, wouldn't every single piece of software that interacts with an OS be a derivative work? After all, I can make software that changes a Windows registry setting, but that doesn't make my software a derivative of Windows.
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- Anonymous Coward, 12 Nov 2015 @ 10:35am
  
  Re:
  Would you consider apps that use APIs to interface with other programs to be derivative works?
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  - CFV, 12 Nov 2015 @ 11:55am
    
    Re: Re:
    I'm evidently not 100% clear on what a derivative work is, so I'll have to abstain from answering until I find a me-proof answer
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    - Anonymous Coward, 12 Nov 2015 @ 2:37pm
      
      Re: Re: Re:
      I'm evidently not 100% clear on what a derivative work is
      17 U.S.C. § 101 - Definitions
      A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
      [ link to this | view in chronology ]
    - Anonymous Coward, 12 Nov 2015 @ 2:54pm
      
      Re: Re: Re:
      I'm evidently not 100% clear on what a derivative work is
      
      "[R]egrettably the understanding of derivative works is fast approaching incomprehensibility."
      
      ——William F. Patry, Patry On Copyright, 2013
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    - Anonymous Coward, 12 Nov 2015 @ 3:49pm
      
      Re: Re: Re:
      I'm evidently not 100% clear on what a derivative work is
      
      “The Quest for a Sound Conception of Copyright's Derivative Work Right”, by Pamela Samuelson, 2013
      . . . by the mid- to late-nineteenth century, courts and legislatures began to be more receptive to claims that specific types of derivative works should be within authorial control. In 1841, for instance, Justice Story ruled that an unauthorized abridgement of an eleven-volume compilation of George Washington's letters was not a fair abridgement, and in 1870, Congress amended U.S. copyright law to grant authors the right to control translations and dramatizations of their works. In 1909, Congress provided a more expansive but still specific list of derivatives that authors were entitled to control. Not until the to Copyright Act of 1976 (1976 Act) did U.S. law grant authors a general right to control the preparation of derivative works. . . .
      
      The derivative work right has proven unproblematic and uncontroversial in cases involving the nine exemplary derivatives and close analogues, but it has been highly problematic in some cases in which courts have interpreted broadly the clause with which the definition ends ("or any other form in which the work is recast, transformed, or adapted"). Some courts and commentators have interpreted this clause as giving copyright owners an entitlement to control all markets into which any emanation of their works might travel. Some have speculated that even noncommercial derivatives, such as amateur remixes and mashups, might infringe this right. Most commentators have decried the overbreadth of the derivative work right and offered suggestions about how it might be narrowed. Although one prominent treatise author considers the derivative work right to be superfluous, another thinks that the derivative work right has replaced fair use as the "most troublesome" doctrine of U.S. copyright law. Mysteries abound about the proper scope of the derivative work right.
      (Footnotes omitted.)
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      - Anonymous Coward, 13 Nov 2015 @ 8:43am
        
        Re: Re: Re: Re:
        … by the mid- to late-nineteenth century…
        Tyler Ochoa gives a slightly more detailed account of the early legislative underpinnings in his 2004 article, “Copyright, Derivative Works and Fixation: Is Galoob a Mirage, or Does the Form (GEN) of the Alleged Derivative Work Matter?”. See pp. 1018-9 (pp. 29-30 in pdf), including footnotes 140-144 in that article.
        
        Professor Ochoa marks the amendment of 1856 as a stepping stone.
        Under the 1790 and 1831 Acts, the copyright owner was given the exclusive right to "print, reprint, publish, and vend" the work, and to prohibit the unauthorized importation of copies. Courts construed these rights narrowly; an unauthorized German translation of "Uncle Tom's Cabin," for example, was held not to be an infringement. In 1856, Congress added a right of public performance in dramatic compositions. . . .
        Today, of course, under the 1976 Act, we distinguish between the § 106(2) derivative works right, which includes “dramatization”, and the § 106(4) public performance right. Not so, back then. Looking at the 1856 amendment, we just see:
        [T]he sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place during the whole period for which the copyright is obtained.
        
        Oren Bracha, in his “Commentary on the Copyright Act Amendment 1856”, while directly connecting this early dramatization right only to the modern public performance right, still notes the deep nature of this step.
        On a more general level, the introduction of a public performance entitlement in dramatic works was part of the fundamental transformation of copyright's framework in the nineteenth century. In this process the traditional conception of copyright as limited to verbatim reprints was supplanted by a new understanding of copyright as the exclusive entitlement to enjoy all the profits from exploiting an intellectual work.
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- Anonymous Coward, 12 Nov 2015 @ 11:33am
  
  Re:
  I don't agree with this, but the FSF basically argues inducement. They don't use that word, but they claim that when library or plug-ins are ran with that there linked with that the two program merge in the RAM producing a derivative work. This despite the fact, the program was not distributed in that manure. It's a kind to the government of France or Germany arguing that a baker broke the law, because a customer wanted a cake with a swastika and instead doing that, they made a blank cake and gave the customer a packet of icing, knowing they would put a swastika on the cake.
  [ link to this | view in chronology ]
- Anonymous Coward, 12 Nov 2015 @ 12:03pm
  
  Re:
  As a software developer, you better hope not. Otherwise everything is a derivative of the OS. Excel files that use VB Macros would be a derivative of Microsoft Excel. Querying a database would make your app a derivative of {insert DB vendor of choice}.
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- John Fenderson (profile), 12 Nov 2015 @ 2:34pm
  
  Re:
  A derivative work is one where an existing work was used as a starting point. Software that uses the api presented by another piece of software is not a derivative work, it is a unique work. To be derivative, it would have to copy a substantial part of the other software, either the code or the look and feel.
  
  If you write something original that plugs into something else, that is an original work, not a derivative one.
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- TimothyAWiseman, 13 Nov 2015 @ 10:17am
  
  Re:
  Most open source libraries are not licensed under the GPL, but under the LGPL. The LGPL is designed to be more friendly towards building on top of the library than the original GPL. Of course, whether or not it is sufficiently friendly for your purposes is something you need to determine for yourself, perhaps after consulting competent counsel.
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That Anonymous Coward (profile), 12 Nov 2015 @ 10:10am

Hundreds of kajillions of lost income, if we multiply by x and move the decimal over there.
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Beech, 12 Nov 2015 @ 10:36am

I think you mangled the headline a bit. Might i humbly propose:

"Yet Again, Blizzard Looks To Twist Copyright Law To Go After Bot Makers"
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Anonymous Coward, 12 Nov 2015 @ 11:26am

Yet Blizzard still doesn't ban most of the botters
I wish Blizzard would settle on just banning the most blatant bot abusers instead as a start.

In Diablo for example, many of the biggest streamer names have profiles that show they've been playing the game nearly 24/7 for months. The only 'break time' they have is likely when the servers are down for maintenance.

I mean literally, you CAN'T get anymore obvious then 24/7 uptime playing the game that you're botting, you'd die if you tried to play a game that much. Even the biggest fan can't be dedicated enough to play a game 24/7 for several months straight.

Not banning those big name streamers who are well known botters is driving more people to cheat and bot then anything the bot makers could ever do.
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- ltlw0lf (profile), 12 Nov 2015 @ 2:11pm
  
  Re: Yet Blizzard still doesn't ban most of the botters
  I mean literally, you CAN'T get anymore obvious then 24/7 uptime playing the game that you're botting, you'd die if you tried to play a game that much. Even the biggest fan can't be dedicated enough to play a game 24/7 for several months straight.
  
  It would be impossible for a single person to do, but not for three people, working as a team over that time. I suspect the streamers are using several people to generate those streams, since bots would be far less up to the task. Bots are great at doing the same thing over and over again, such as mining for gold or running the same mission over and over. To keep their audience, the streamers really have to be dynamic and go after new and different things.
  
  What is interesting is when these companies go after people selling gold/items/etc. Those tend to be the people using the bots, running the same mission over and over again to collect new items, amass gold, etc. Their only goal is to sell the items, not play the game, and they can really do this without a bot even though it becomes so monotonous for the player. When Eve Online started ejecting bots, there were still a lot of ISK sellers online, they'd just pay humans to be glorified bots, playing the same missions over and over again to collect money and items to sell. The only people who ended up being hurt were the folks paying for their own accounts using bots (not that this was a good thing)...the ISK sellers kept selling their wares unhindered.
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  - Ninja (profile), 13 Nov 2015 @ 4:57am
    
    Re: Re: Yet Blizzard still doesn't ban most of the botters
    Well, on games that this would add an unfair advantage I do think bots are debatable. But as many said, once you LIKE the game but you don't want to spend several goddamn hours farming for that "Demonic Essence of Whatever" and instead want to move on with the interesting thing then it's only natural people will turn to such things.
    
    Taking Diablo as an example, you expect that within a reasonable time frame you'll be able to reach a determined level of power. But then you see people that play the exact same amount of time you do get awesomely better than you because they are lucky and you keep stalling over and over and over. At some point you'll either give up or resort to bots. I personally like Diablo, I like to test builds to tinker around. But it takes ages and I do not have that much time anymore. I'd LOVE to use a bot there to lessen the time spent a bit. And it would harm nobody. In D2 I started using character editors at a point to test different ways of dealing with levels, handicaps and different monsters while I had that regular char that just went up via normal routes. And editing the chars did not strip the game of its fun.
    
    I do think bots are problematic in mmos but for god sake, let people get the items without having to be living bots.
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- Kronomex, 18 Nov 2015 @ 12:55pm
  
  Re: Yet Blizzard still doesn't ban most of the botters
  Ban the botters? They do that and, gasp, shock, horror, they lose money. Better to bleat and just let them slide under the radar so to speak.
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Anonymous Coward, 12 Nov 2015 @ 2:53pm

Blizzard isn't happy about bots, but for a lot of people it's the only entertainment value left in World of Warcraft.
No new content AT ALL for another year despite Blizzards multiple lies to the contrary.

Not even sure how Blizzard can afford to ban ANYONE given that as of 1st October 2015 their subscriber base dropped to a record low of 2.223 million actively paying customers from a high of 12million earlier in the year. Thats also the reason blizzard made it a dismissable offence for ANY Blizzard employee to offer subscriber numbers.

Once players see how fast the playerbase is falling they may decide to join the flood.
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- Anonymous Coward, 12 Nov 2015 @ 4:18pm
  
  Re:
  "Not even sure how Blizzard can afford to ban ANYONE given that as of 1st October 2015 their subscriber base dropped to a record low of 2.223 million actively paying customers from a high of 12million earlier in the year."
  
  Not sure where you get those numbers from. Their reports have those numbers:
  
  Q1 7.1mio subs
  Q2 5.6mio
  Q3 5.5mio
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Ninja (profile), 13 Nov 2015 @ 5:08am

(May be a little off topic)

I personally see bots as a symptom of another problem. People want to do the stuff in the game. But they don't have the time to spend farming for stupid items. Or items with impossibly low drop rates.

Diablo III is a good example of that for me. I'd love to run a bot to get reagents and possibly items to tinker around and test different builds. Alas I'm limited to an average of 1 hour per day and my weekends have to be balanced with gaming and family.

Another example that go beyond the farming is wow. I abandoned wow when they made daily quests kind of mandatory and I felt my time was being wasted. I had a lot of fun in the Cataclysm patch because I made one char of each class and was able to more or less develop them to a satisfying point. This simply ceased to be possible with Pandaria and a good portion of the fun I had tinkering with various chars disappeared. I liked the way they started scaling item levels so you could have awesome items even if you didn't have the time to spend hours in the process of organizing and conducting a raid though. I'd like to follow the lore ingame, go back playing but I know I won't be able to do it without a ton of time in my hands so I decided to abandon it altogether.
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- Anonymous Coward, 13 Nov 2015 @ 9:19am
  
  Re:
  The best thing to happen to WoW was the server emulators and a project called the Single Player Project. I loved WoW but hated the MMO aspect. Other players ruined it for me - harvesting ores before you can get to them, constantly inviting you to play with them but wanting to do their quest instead of yours like you're playing just to help them, opposing players killing all the NPCs at the nearest flight master, having to wait for bosses to respawn, and gold begging.
  
  SPP fills your own emulated world with as many bots as your computer can handle and you can recruit them to go on quests with you. And when you're a GM in your own world, you can dispense with the aspects of the game that don't suit your gameplay style, such as instantly teleporting to locations instead of traveling everywhere for hours. I like to collect and sell everything I pick up, so I start myself with the biggest capacity bags and I spawn a vendor to sell them to whenever I need to. This saves all that time of running back to a vendor to sell your full load of loot and having to either interrupt quests or make a hard decision about what to abandon.
  
  WoW was never so much fun for me.
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