Blizzard ruling == trouble for DVD in US?

[fibbingbear]

As seen on Slashdot and other such web sites, Blizzard Entertainment won a lawsuit against MDY (a program used to automate gameplay for Blizzard games). One part of the ruling stated that loading a copy of the product from hard drive to memory constituted copyright infringement:

http://virtuallyblind.com/2008/07/14/blizzard-wins-sj-mdy/

This interpretation of "copying" seems ridiculous. It claims that copying data from HD to RAM without the consent of the manufacturer is illegal. I could envision that "the right to make personal backups" could be totally eroded between this and the DMCA.

What are other people's thoughts on this? It just seems ridiculous. If I had a record player and was playing it on a "non-approved speaker system", would that mean that I'm guilty of copyright infringement, since there's a copy of the music going across those wires? If I'm a virus writer, can I sue McAfee et. al for scanning files with my copyrighted code, since they have to load it into RAM to analyze? ;-)

[laserfan]

I could envision that "the right to make personal backups" could be totally eroded between this and the DMCA.If you're worried about the FBI breaking-in to your house to sieze your personal backups, I think you worry too much! ;)

For nit-wits that then turn-around and Upload their "personal backups" for the world to have access to, well that's something else again.

If I'm a virus writer, can I sue McAfee et. al for scanning files with my copyrighted code, since they have to load it into RAM to analyze?A virus writer? That contributes to the good of mankind in what way? What would you argue to the judge? :confused:

[GrofLuigi]

A virus writer? That contributes to the good of mankind in what way? What would you argue to the judge? :confused:
Maybe he meant a rootkit writer (http://cp.sonybmg.com/xcp/english/home.html) or a spyware writer (http://support.microsoft.com/kb/892130)? :(

GL

[fibbingbear]

A virus writer? That contributes to the good of mankind in what way? What would you argue to the judge? :confused:

That was just a hypothetical example.
Basically, just pointing out how silly it is to say "copying from HD to RAM constitutes copyright violation."

And also as pointed out earlier, CDs have come with rootkits to prevent piracy. But not just CDs, lots of places install rootkits on your system now. I once got a rootkit on my system from trying to play Mu Online (a well-known, free online game) and it installed GameGuard to prevent online cheating. The only thing it did was open my computer up to a well-known security hole caused by the program! And uninstalling the game did not remove the kit, I had to format :(

With a court case like this, it's nice to know that even trying to *detect* rootkits could be against the law...

[adam]

Blizzard ruling == trouble for DVD in US? and "the right to make personal backups" could be totally eroded between this and the DMCA.

There is really no connection whatsoever between this ruling and DVDs or DVD copying. This case did not involve Fair Use, and neither does copying DVDs. The "right" to make backups is not a general right and only applies in express circumstances which doesn't involve Fair Use and doesn't apply to DVDs. Let me explain...

Fair use does not allow archival copying of any kind. The right to make archival copies is something that is specifically created by statute and it only applies to musical recordings and computer software. Title 17, Section 117 creates an exception to the general rule of copyrights (ex: can't copy without permission) in the case of computer software. You are allowed to make archival copies of computer software. Its spelled out right there in the statute. In this case, MDY is not making archival copies, they are making intermediate copies for use in a commercial software product. Legally they are also classified as licensees rather than owners of the software. The result is that they cannot use section 117 to exempt the copying that their software does. The law is pretty well established that copying to RAM is a copy which is protected by copyright. This is not a limitation that is going to effect an end user just using the product (ex: playing the music) because your license allows that. Obviously you are allowed to play the music or game that you bought on an output device. This is also not something that is going to effect an end user's right to make a hard copy for archiving, again because section 117 expressly exempts it. But MDY was doing neither of these things.

As for DVDs, there is no statutory exception for them as there is for computer software (section 117) and music recordings (1008.) The Copyright Register has addressed the issue of DVD copying on three separate occasions over the years, and published multiple opinions on the subject. It has been held quite clearly that Fair Use does not allow general backups or specifically DVD backups, and that a statutory exception would have to be created by the legislature as was done for computer software and musical recordings.

Here is the Register's official opinion. Until and unless the Legislature creates an exemption, there is no right to make an archival copy of a DVD in the United States.

The proponents of this exemption desire to make backup copies of their DVDs for a variety of purposes: they claim that DVDs are inherently fragile and subject to damage; they are concerned about loss or theft of the original during travel; they wish to duplicate collections to avoid the burdens and risks of transporting DVDs; they assert that some titles are out of print and cannot be replaced in case of damage; and they claim that the duration of a DVD’s lifespan is limited.

The common denominator in all of the comments endorsing an exemption for DVDs appears to be the need to make backups of the original copy due to the alleged fragility of the medium. The question therefore becomes whether making a backup copy of a DVD is a noninfringing use.

The creation of a backup copy of a work implicates the reproduction right. While the Copyright Act contains an exception for the making of backup copies of computer programs in §117, it contains no comparable exemption for motion pictures and other audiovisual works. The proponents of an exemption bear the burden of proving that their intended use is a noninfringing one. No proponent has offered a fair use analysis or supporting authority which would allow the Register to consider such a basis for the exemption, and the Register is skeptical of the merits of such an argument.
DVDs, of course, are not indestructible. Neither were traditional phonograph records; nor are CDs, videotapes, paperback books, or any other medium in which copyrighted works may be distributed. The Register is not persuaded that proponents of this exemption have shown that DVDs are so susceptible to damage and deterioration that a convincing case could be made that the practice of making preventive backup copies of audiovisual works on DVDs should be noninfringing.
The proposed exemption is not simply to permit remedial measures for disks which become damaged, but rather to allow reproduction of the works as a precautionary measure. While an analogy might be made to the basis for the backup exemption for computer programs that was enacted in the days of corruptible floppy diskettes, there are important differences. Congress carefully addressed the §117 exemption for backups of computer programs with restrictive conditions. One day Congress may choose to consider a carefully tailored exception for backing up motion pictures if it is persuaded that one is necessary, but the Register sees no authority under current law that would justify an exemption to enable the making of backup copies of motion pictures on DVDs. Given the tremendous commercial appeal of the DVD format at a time when alternative analog formats still exist, it seems unlikely that now is the time. And while it may well be true that analog formats are headed for ultimate extinction, the market is already beginning to see evidence of alternative forms of digital delivery over the Internet. The decision to purchase a DVD format entails advantages and, perhaps, disadvantages for some. The purchase of a work in that particular format is not, at present, a necessity and DVDs are unlikely to become the only format in which motion pictures may be purchased. The record in this rulemaking does not establish that the potential for possible future harm to individual disks outweighs the potential harm to the market for or value of these works that would result if an exemption were granted. The unauthorized reproduction of DVDs is already a critical problem facing the motion picture industry. Creating an exemption to satisfy the concern that a DVD may become damaged would sanction widespread circumvention to facilitate reproduction for works that are currently functioning properly. As presented in this rulemaking, the exemption would be based on speculation of future failure. Even though certain copies of DVDs may be damaged, given the ready availability of replacements in the market at reasonable costs, on balance, an exemption is not warranted on the current record.

The opponents have provided strong evidence of the increasing popularity of the DVD format. The Register finds it difficult to imagine that a format that is fundamentally flawed would become so popular. Similarly, it is difficult to imagine how a business model of renting DVDs, which also appears to be thriving, could be viable if the medium were so fragile. Further, it is significant that the scope of the problem the proponents describe is limited to movies on DVDs and does not address other types of works which commonly employ DVDs, such as video games. All these facts lead to the conclusion that, on the current record, DVDs are not unusually subject to damage in the ordinary course of their use. To the extent that some commenters found it more convenient to travel with backups or keep backups of their works in multiple locations, e.g., vacation homes or cars, the prevention of such uses appears to represent an inconvenience rather than an adverse effect on noninfringing uses. Indeed, the Register is aware of no authority that such uses are noninfringing. To endorse such uses as noninfringing would be tantamount to sanctioning reproductions of all works in every physical location where a user would like to use the work, e.g., the purchase of one book would entitle the user to reproduce copies for multiple locations. Except where a case-by-case analysis reveals such reproduction to be noninfringing under §107 or some other specific exemption, such reproductions of convenience are infringing under the Copyright Act. Neither the fear of malfunction or damage nor the conveniences enabled by backups satisfy the requirement that the intended use be a noninfringing one.

[setarip_old]

@adam

Hi!As for DVDs, there is no statutory exception for them as there is for computer software (section 117) and music recordings (1008.)1) Am I correct in presuming this is a typo that correcly should read "§108"?

2) If software is on a DVD, does the exception per §117 permit the purchaser to make an archival or "backup" copy?

[adam]

1) No that is not a typo. Section 1008 allows end users to make archival and duplicate (one for house, one for car, etc..) copies of musical recordings. Section 108 allows archival copying of just about anything, but only if you are a recognized library.

2) Yes you can make an archival copy of software contained on a DVD. The medium a work is on is largely irrelevant. What matters is the type of work.

[setarip_old]

Section 1008 allows end users to make archival and duplicate (one for house, one for car, etc..) copies of musical recordings.The medium a work is on is largely irrelevant. What matters is the type of work.Then I wonder how a DVD and DVD-A of a musical performance would be categorized regarding an end user's right to make an archival copy...

[adam]

The section 1008 exemption applies to qualified digital audio recording devices. These are DAT recorders and other devices that output solely to Music CDRs. (That is the only point of those music CDRs) These devices can take various inputs so I'd imagine you could put any source you want (CD, DVD, DVD-A) but you are always going to be outputting to a regular CDR because that's all the devices can do. So the answer is that you can use DVDs of say a concert (which would be an audio-visual work) or a DVD-A which may contain audio visual elements, and use them as your source but all you are going to be able to legally copy are the audio tracks and that is all that section 1008 allows.

[setarip_old]

So, to summarize your statements regarding Sections 117 and 1008:

1) An end user CAN make a backup copy of software, using a DVD as the storage medium

2) An end user CAN make a backup copy of the AUDIO portions, but NOT the video portions, of a music DVD or a DVD-A - but NOT to a DVD as the storage medium

If these interpretations are correct, I would hope that someone/group would be able to successfully argue against what I view to be the illogical distinctions being made...

[adam]

That sounds right. The main distinction is that audio/visual works are afforded the greatest amount of copyright protection, as opposed to musical works and computer software. The rationale for this is that audio/visual works typically involve a much more significant investment. How many computer games or albums could you produce for the price of one ~100 million dollar film?

[setarip_old]

The rationale for this is that audio/visual works typically involve a much more significant investment.1) Is this stated in the Copyright Register as the rationale, or is this your personal rationale? Additionally, I'd suggest to you that the vast majority of DVD releases are of significantly smaller budget, other-than "$100 million films". Does the Copyright Register include some objective statement as to a minimum investment that is "worthwhile" to provide copyright protection?

2) How does this rationale fit with your acknowledgment that an end user can make a backup copy of the audio portions, but not the video portions, of a music DVD or a DVD-A - but not to a DVD as the storage medium? Also, I presume the Copyright Register doesn't even make the distinction that I've made - and that it would be just as permissible to make a backup copy of the audiostreams of non-musical DVDs. If so, the distinction being made between data streams appears to defy logic...

[Gavino]

Yet another seeming illogicality is seen here:
The section 1008 exemption applies to qualified digital audio recording devices. These are DAT recorders and other devices that output solely to Music CDRs.
This seems to suggest that you are not allowed even to copy a CD on a computer, or perhaps you are if your computer has only a CD writer but not a DVD writer, even if you only use it to create CDs. Bizarre.

[adam]

Is this stated in the Copyright Register as the rationale, or is this your personal rationale? Additionally, I'd suggest to you that the vast majority of DVD releases are of significantly smaller budget, other-than "$100 million films". Does the Copyright Register include some objective statement as to a minimum investment that is "worthwhile" to provide copyright protection?

I'm certain that I have read this in one of the Register's opinions but I cannot find it, so I guess I'll just call it my rationale. All works considered, I think its accurate to say that the average motion picture costs more to produce than the average musical recording. Of course there is no minimum investment making something "worthwhile" of copyright protection. As I stated, copyright protection is broken down by type of work and legislated as a group, and audiovisual works are granted greater protection than other groups, as evidenced by its special treatment under numerous statutes.



2) How does this rationale fit with your acknowledgment that an end user can make a backup copy of the audio portions, but not the video portions, of a music DVD or a DVD-A - but not to a DVD as the storage medium? Also, I presume the Copyright Register doesn't even make the distinction that I've made - and that it would be just as permissible to make a backup copy of the audiostreams of non-musical DVDs. If so, the distinction being made between data streams appears to defy logic... [/Color]

I don't see why it is illogical. If audiovisual works are entitled to greater protection, than it makes sense that you might not be able to make a complete copy of the entire work, encompassing both the audio and the video components. An audiovisual work is comprised, at the minimum, of an audio portion independently protected by a copyright, a video portion independently protected by a copyright, and the compilation of the two independently protected by a copyright. The purpose of the statute is to create an exemption to the copyright applied to musical works, and thus the music component of any compilation. The statute simply is not concerned with what all might be contained on any given source disc. It gives you the right to make a duplicate musical recording from any source.

The rationale I listed, at least in my opinion, is one of the reasons why audiovisual works are granted more protection generally. If you want to talk about specific examples (ex: music DVDs, DVD-A) than all I can tell you is to apply that example to the relevant statute. Section 1008 exempts personal copying using qualified digital audio recording devices when copying onto qualified digital audio recording media (ex. music CDRs.) So under this statute any source can be used regardless of what additional information it contains besides music, but the copy is limited to whatever a music CDR can hold. I've seen some audio CDs that contain additional data, like VCD quality videos and such. Perhaps Dat records can make a 1:1 dupe including this additional data. I have no idea. But I'm fairly certain you couldn't copy video portions from the music DVD on to the cdr. Its just a limitation of the hardware.

If any of this seems like a compromise of this rationale, well that's probably because the statute itself is a compromise. Various lobbyists wanted the public to have the right make archival copies of music CDs. So through industry collaboration an agreement was reached and the Audio Home Recording Act was passed. End users can now basically make any copies that are physically possible using a Dat recorder (which can only output to music CDRs.) The quid pro quo is that qualified digital audio recording devices and the media (music CDRs) have a royalty attached. The funds are collected and dispersed to labels and their artists.

[adam]

This seems to suggest that you are not allowed even to copy a CD on a computer, or perhaps you are if your computer has only a CD writer but not a DVD writer, even if you only use it to create CDs. Bizarre.

Again, the medium is immaterial. If you are talking about computer software, than you can make archival copies using a pc regardless of whether the source is a CD or a DVD.

If you are talking about Audio CDs than no it is not permissible to use your pc to make a copy onto a regular CD UNLESS you purchase a license to do so. When you purchase online music it is common for them to sometimes give you a license to burn that music to a CD. But Section 1008 is very clear that musical recordings can only be archived using qualified digital audio recording devices and the copy must be made onto a music CDR. There is caselaw holding that a pc is not a qualified digital audio recording device, because it is not marketed primarily as such. If it did qualify as such a device, than we'd all have to pay a royalty every time we purchased a pc. The distinction between music cdrs and regular cdrs would also become meaningless and we'd have to pay a royalty to the music industry on all cdr media we purchased regardless of what we wanted to use it for.

Look the whole point of the audio home recording act was to create an archival right in regards to musical recordings and to regulate that copying by creating specific hardware and media for that purpose. If you want to legally dupe a CD you are supposed to use a DAT recorder and purchase a music CDR, so that the royalty covers the use. I know most people just use their pc and a regular CDR, and avoid paying the royalty, but legally this is an infringing use. That's just the way that the legislature has chosen to address this issue. You can call it illogical or bizarre, but that was the agreement that was reached between the recording industry and various consumer rights organizations.

[setarip_old]

@adamIf any of this seems like a compromise of this rationale, well that's probably because the statute itself is a compromise.I'd suggest that the phrase "outrageous inconsistencies" be substituted for the rather gentle word "compromise" - and, as I suggested earlier, I would hope that someone/group would be able to successfully argue against what I view to be the illogical distinctions being made...

[adam]

@adamI'd suggest that the phrase "outrageous inconsistencies" be substituted for the rather gentle word "compromise" - and, as I suggested earlier, I would hope that someone/group would be able to successfully argue against what I view to be the illogical distinctions being made...

I get it, you don't like this law. That doesn't change the fact that members of the recording industry met with members of consumer rights organizations and compromised to create it. If it weren't for that statute there'd actually be no right to archive musical recordings at all. That is a pretty significant right to just create out of thin air. You can't expect it to be without some limitations. As with any other law, this right to archive musical recordings can be broadened or further limited at any time.

As for trying to change distinctions made in section 1008, the copyright register has a comment section. Anybody can make a comment and the register will actually address these in its published opinions, and will submit suggestions to Congress for change. Other than that, you've got to lobby legislators yourself.

[Gavino]

The distinction between music cdrs and regular cdrs would also become meaningless and we'd have to pay a royalty to the music industry on all cdr media we purchased regardless of what we wanted to use it for.
I was unaware there was any distinction between types of CD-Rs (other than for marketing purposes).

Here in Spain they have just introduced a controversial scheme whereby all digital media and potential recording and playing and storage devices have a royalty charge: including hard drives, mobile phones (cellphones), DVD burners, etc, as well as the media themselves, CDs and DVDs.

[cdanddvdpublisher]

I was unaware there was any distinction between types of CD-Rs (other than for marketing purposes).

Here in Spain they have just introduced a controversial scheme whereby all digital media and potential recording and playing and storage devices have a royalty charge: including hard drives, mobile phones (cellphones), DVD burners, etc, as well as the media themselves, CDs and DVDs.

interesting - provided it would loosen other restrictions

[Dr.Khron]

Ok, so lets assume that there is no overlap to DVD land. Then what?

I'm kind of torn... I like the idea that Blizzard was able regain some control over their own product, but on the other hand, this is potentially abusable by large companies, no? Despite the good intentions, I'm afraid that this decision has swung the pendulum way too far.

[Gusar]

I like the idea that Blizzard was able regain some control over their own productActually they haven't. They screwed even themselves up. A slashdot comment (http://yro.slashdot.org/comments.pl?sid=613929&cid=24193479) (that I absolutely love, because I believe it's true):Blizzards own Warden program sits inspecting other files and processes on your system to ensure they're not cheating tools, this is easily and equally demonstrable as against the EULA/ToS of the other applications it scans.

In winning this case, Blizzard have quite arguably declared their own Warden anti-cheating application illegal.

[adam]

Blizzards own Warden program sits inspecting other files and processes on your system to ensure they're not cheating tools, this is easily and equally demonstrable as against the EULA/ToS of the other applications it scans.

In winning this case, Blizzard have quite arguably declared their own Warden anti-cheating application illegal.

That comment is actually kind of ridiculous. Blizzard very clearly cannot be bound by the terms of a EULA/ToS that they are not a party to. Just because you install program X and program Y on the same computer doesn't mean that the respective manufactures are bound by the EULA of the other's programs. I don't see how scanning another program's files would violate its EULA anyway, and it certainly wouldn't qualify as copying under copyright law.

The terms of any license agreement only apply to the person that purchased that license. EULA stands for END USER license agreement. Blizzard is not an end user.

[Shinigami-Sama]

That comment is actually kind of ridiculous. Blizzard very clearly cannot be bound by the terms of a EULA/ToS that they are not a party to. Just because you install program X and program Y on the same computer doesn't mean that the respective manufactures are bound by the EULA of the other's programs. I don't see how scanning another program's files would violate its EULA anyway, and it certainly wouldn't qualify as copying under copyright law.

The terms of any license agreement only apply to the person that purchased that license. EULA stands for END USER license agreement. Blizzard is not an end user.

but when you as the enduser launch that blizzard program you also launch that BS application as well

[adam]

but when you as the enduser launch that blizzard program you also launch that BS application as well

So what? Blizzard cannot be bound by the contracts that everyone of their customers enters into with all other software companies. It doesn't even make sense.

Making a program that merely scans files that are part of another program does not necessarily implicate copyright law. Think about virus scanners or even windows for that matter.

Blizzard is still bound by all applicable laws. Its entirely possible for a part of their software to go too far and violate some legal provision...somewhere. But it simply has nothing to do with the EULA for some other piece of software that a Blizzard customer purchases.

[Gusar]

Making a program that merely scans files that are part of another program does not necessarily implicate copyright law. Think about virus scanners or even windows for that matter.Blizzard's Warden needs to copy those apps into RAM in order to scan them. According to the court ruling, this is a copyright violation - copying an app into RAM for some purpose that's against said apps EULA. It's nice that you mention virus scanners, because according to the court ruling, they too are illegal.

That's what all this fuss is about - the entire court ruling is either ridiculous or will have grave consequences.

[adam]

Blizzard's Warden needs to copy those apps into RAM in order to scan them. According to the court ruling, this is a copyright violation - copying an app into RAM for some purpose that's against said apps EULA. It's nice that you mention virus scanners, because according to the court ruling, they too are illegal.

That's what all this fuss is about - the entire court ruling is either ridiculous or will have grave consequences.

The case does not hold that "copying an app into RAM" is a copyright violation, it holds that copying COPYRIGHTED elements to ram is a copyright violation, IF you are without authorization or defense. Copyrights are not intended to protect every bit of every file of the software, and they certainly don't protect the meaningless guts of the program as it runs, they protect only those elements that express a copyrightable idea.

At most, Warden scans already executed programs (already in ram) that are running on your system for signatures then derives its own data from that. If you read MDY's own filed claim, it doesn't even do that it simply scans its OWN executable for recognized patterns. I don't believe Warden copies a damn thing in its function. It certainly doesn't copy a copyrighted element by looking at the executable as it is running. The concerns of Warden are that of privacy, not copyright infringement. Virus scanners can do various things when doing their work, but under section 117 you, and 3rd party developers, have the right to make copies for the purpose of repair of any software that you own.

None of these things are remotely similar to what MDY admits its software does. It does not scan files like Warden or virus checkers. Glider actually executes the software itself, and it literally agrees to the EULA when it does this. It then copies the literal expression of the WoW game into ram, applies its keystrokes and whatnot, and then sends its data to the Blizzard servers. Pardon the pun, but it literally copies the entire world of World of Warcraft. That is the alleged copyright violation. It is copying the entire expression of that copyrighted world that people are paying to participate in. It is the very essence of the work. What is also truly significant is that MDY admit all of this in its own suit. They do not dispute that they copy a copyrighted element of WoW, they just contend that they either have the right to do this or that they can only be held accountable contractually, not under copyright law.

Now I don't think any of this is going to change your mind, but let me at least clarify one major thing that you are misunderstanding. This case did not create the legal rule that copying to ram constitutes copying for purposes of copyright law. If you think that this rule is ridiculous or will have grave consequences, or that it somehow prohibits the use of Warden or virus checkers, than you need look at cases that were decided more than a decade ago because this is well established law in the 9th Circuit and in most other circuits. It is so well established in fact that it was never an issue in the case. Please go and read MDY's request for declaratory judgment (remember MDY filed suit, not Blizzard) and their subsequent responses. They came right out and admit that their software does copy WoW's copyrighted elements to ram and that loading into ram constitutes copying under copyright law. Their defense was that they are essentially "playing" the game under the same EULA conditions as the player when they play it without Glider and that at worst, their actions constituted a breach of the EULA and not a copyright infringement. Essentially, they said that we may owe you money for breach of contract but not statutory damages (and injunction) for a copyright violation.

MDY does not dispute that Blizzard owns a valid copyright in the WoW game client and game server software. Nor does MDY dispute that the game client software, whichtypically is located on the hard drive of a player’s personal computer, is copied from the harddrive to the computer’s random access memory (“RAM”) when WoW is played. Ninth Circuit law holds that the copying of software to RAM constitutes “copying” for purposes of section 106 of the Copyright Act. MAI Sys. Corp. v. Peak Computer, Inc.,991 F.2d 511, 518-19 (9th Cir. 1993). Thus, if a person is not authorized by the copyrightholder (through a license) or by law (through section117, which will be discussed below) to copy the software to RAM, the person is guilty of copyright infringement because the person has exercised a right (copying) that belongs exclusively to the copyright holder.MDY contends that users of Glider do not infringe Blizzard’s copyright because they are licensed to copy the game client software to RAM. MDY claims that WoW players acquire this license when they purchase the game client software and load it on the hard drives of their personal computers. MDY claims that contrary provisions of the EULA and TOU, such as express prohibitions on the use of bots, are mere terms of contract, not limitations on the scope of the license granted by Blizzard. Thus, although Blizzard may assert a claim against Glider users for breach of contract, MDY argues, it cannot assert the more powerful claim of copyright infringement.4

[Dr.Khron]

Holy crap, what an explanation! I feel like I understand the issue much better now.

I particularly liked this part, becuase previously I didn't understand the defense at all:
They do not dispute that they copy a copyrighted element of WoW, they just contend that they either have the right to do this or that they can only be held accountable contractually, not under copyright law.

...

Essentially, they said that we may owe you money for breach of contract but not statutory damages (and injunction) for a copyright violation.

THANK YOU for that.

[sysKin]

But the ruling is very strange anyways.

First, it recognises that simply running a game (by user) is "copying" in the copyright sense. You can't run the game just because you bought it, you can run the game because copyright owner allows you to, or else it's copyright infringement.

And how does Blizzard allow you to run the game? By you accepting *and abiding* their EULA. If you do something EULA doesn't let you (ie break your part of the contract) you lose your permission to "copy" the game into RAM.

Result? A contract, which has always been civil matter, is suddenly enforced by copyright laws! Breaking a contract is suddenly a criminal case rather than civil case. And that's #1 thing that is weird - I can sue you if you break a contract with me, but I can make you a criminal if you break a contract with me if that contract says "by abiding this contract you get permission to own and carry that pretty picture I just drew".

Second thing that's weird is that creators of the bot programs were never the party who signed the EULA. It is users breaking their EULA by using botter programs and therefore (by logic above) losing their right to run the game. And yet it's creators who lost. Bad precedence, holding people accountable if their work makes other people (willingly) break their contracts.

What if they sell a DVD which says "you only have a permission to watch this movie if you don't own a PC" and yet people ignore it and watch it while owning PCs - will PC builders be held accountable? On copyright infringement basis?

[adam]

But the ruling is very strange anyways.

First, it recognises that simply running a game (by user) is "copying" in the copyright sense. You can't run the game just because you bought it, you can run the game because copyright owner allows you to, or else it's copyright infringement.

And how does Blizzard allow you to run the game? By you accepting *and abiding* their EULA. If you do something EULA doesn't let you (ie break your part of the contract) you lose your permission to "copy" the game into RAM.

The ruling definitely does recognize this, but this is nothing new. That is exactly what a software license is and always has been. Whether you break it down to the level of making a copy into ram or not, the right to run the software is something that the copyright owner has the exclusive right to do, and they license that right to you when you purchase the software, agree to the EULA, and run it. If you violate the EULA, than you no longer have the right to use it.

Result? A contract, which has always been civil matter, is suddenly enforced by copyright laws! Breaking a contract is suddenly a criminal case rather than civil case. And that's #1 thing that is weird - I can sue you if you break a contract with me, but I can make you a criminal if you break a contract with me if that contract says "by abiding this contract you get permission to own and carry that pretty picture I just drew".

I do not agree with this. The contract is between the end user and the manufacturer. If you break that contract than it is still just a contract issue. MDY sold their own software that makes use of the WoW game. They tried to be a party the EULA by agreeing to it through their software, but it just doesn't work like that. Blizzard has a right to sell their software for some purposes and not others. They have a right to sell their product to be played, not incorporated into another product that is sold by somebody else. What MDY was doing really is a copyright issue, not a contract one.

In any case, BOTH contract breach and copyright infringement are civil issues. Despite what the FBI warnings say, copyright infringement very rarely constitutes a criminal act. Criminal copyright infringement requires willful conduct and profit, or if there is no profit, that the amount copied exceed a threshold amount in a set time period. The very fact that MDY requested a declatory judgment shows that their conduct is not willful, and of course this was a civil copyright claim with no criminal actions even eluded to.

Second thing that's weird is that creators of the bot programs were never the party who signed the EULA. It is users breaking their EULA by using botter programs and therefore (by logic above) losing their right to run the game. And yet it's creators who lost.

MDY actually does "agree" to the EULA when it runs the program, because the WoW software has a "click here to agree" type of EULA application, but in any case forget about the EULA. It was MDY that tried to hide behind the EULA by saying that, at worst they just violated it. The court ruled that MDY's actions really have nothing to do with the EULA at all because they are not a party to it. Its not that they violated the EULA, its that they are not a party to any agreement at all and thus have no right to use the WoW software at all. That is why they are liable.

Bad precedence, holding people accountable if their work makes other people (willingly) break their contracts.

What you just said is almost word for word the definition of contributory copyright infringement. This case does not set any precedence in this regard. The accepted definition of contributory copyright infringement hasn't changed since 1971:

Contributory copyright infringement occurs when one, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another."

What if they sell a DVD which says "you only have a permission to watch this movie if you don't own a PC" and yet people ignore it and watch it while owning PCs - will PC builders be held accountable? On copyright infringement basis?

Of course not. A copyright holder cannot use a license on its copyrighted work to grant itself an exclusive rights not otherwise provided for under copyright law. It is called copyright misuse. The copyright holder can only limit how their work is used, they cannot dictate things that are not directly related to their work.

MDY was held liable on a theory of contributory copyright infringement. The use of their software by the end user directly violated the EULA of the end user, and MDY obviously knew this. Contributory liability does not extend to all tools used in the process and the ultimate defense to contributory liability is that your product serves a substantially non-infringing purpose. PCs obviously serve many non-infringing purposes and in any case, owning a pc alone does not contribute to any kind of copyright infringement. In other words, there's got to be a real link between the contributor and the direct infringer, AND there's got to be no other substantial use of the product.

[onesloth]

If it weren't for that statute there'd actually be no right to archive musical recordings at all. That is a pretty significant right to just create out of thin air. You can't expect it to be without some limitations.
The *copyright* is the extraordinary right that is created from thin air. And we should expect that IT come with limitations.:sly:

[adam]

The *copyright* is the extraordinary right that is created from thin air. And we should expect that IT come with limitations.:sly:

I'm really not interested in trying to defend *copyrights* generally, and know that I could not do it even if I wanted to. But obviously IT comes with all sorts of limitations.

Take a look at sections 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 507, 512, 906, 907, 1108, 1201(c), 1201(d), 1201(e), 1201(f), 1201(g), 1201(h), 1201(i), 1201(j),1201(e), 1203(c)(5), 1204(b), 1204(c), 1205, and 1302.