Laws of Play

Blizzard Turns to Copyright to Fight Cheaters

In a case that has been described as “pitting distasteful gaming behavior against an unsavory over-assertion of copyrights,” Blizzard Entertainment and Vivendi SA seek damages against software company MDY Industries for alleged tortious interference with contract and secondary copyright infringement. Blizzard claims that MDY’s program “Glider,” which is used by players to automatically level up their character as they go about their daily lives, not only illegally interferes with Blizzard’s End User License Agreement (”EULA”) and encouraging users to breach said agreement, but also makes MDY secondarily liable for copyright infringement.

While companies and individuals can be held secondarily liable for copyright infringement in a number of ways (contributory infringement, induced infringement, and vicarious liability), this liability is always contingent upon plaintiff proving that some sort of direct infringement occurred in the first place. Here, Blizzard claims that the portions of World of Warcraft (”WoW”) that are copied into RAM whenever a user plays the game are infringements. However, Blizzard “excuses” these infringements through the terms of the EULA. Therefore, whenever a user violates the EULA by running Glider, Blizzard claims that the copy of WoW loaded into RAM is no longer “excused” and becomes a direct infringement, which would entitle Blizzard to statutory damages.

So, what’s the big deal?

Well, the big deal seems to be the fact that Section 117 of the Copyright Act allows purchasers of software to make copies of that software when it is essential to use. Without Section 117 it would theoretically be infringement to install a copy of a program on your hard drive or load the program into RAM in order to run it.

However, Blizzard contends that Section 117 doesn’t apply because a purchaser of WoW does not “own” the copy of the game. Instead, Blizzard claims that users simply license the software, as provided in the EULA.

There are two major problems with this argument. First, courts look to the actual substance of transactions to determine whether they are sales or true leases. This has been an issue for years as companies often receive tax benefits for leasing equipment and would prefer to disguise a credit sale as a lease. Second, if Blizzard’s argument was accepted, this would allow nearly all media producers to maintain control over their products indefinitely. For instance, if any media producer could add a line to an EULA that magically turns a sale into a lease, these companies would effectively extinguish the used media market.

For more on MDY v. Blizzard, check out Public Knowledge’s amicus brief, the Electronic Frontier Foundation, and Patent Arcade.