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Blizzard case becoming EULA test case

June 30th, 2008 (Visited 3177 times) Tags: vw law, WoW

Blizzard Responds to Amicus Brief in MDY Bot Suit | Virtually Blind | Virtual Law | Benjamin Duranske

Although it has not put the issue in quite such stark terms, Public Knowledge is essentially seeking a ruling that says that the sale of consumer software is, in most circumstances, a sale, pretty much regardless of what the agreement that comes with the software says. If the court agrees in spite of MAI and its progeny (and the ruling survives certain appeal) then U.S. copyright law would protect, among other things, making copies of purchased software in RAM in order to use the software — no matter what the “license agreement” says. Resolving this issue in favor of Public Knowledge would call into question provisions in EULAs governing nearly every virtual world and multiuser online game, as well as EULAs for other software.

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22 Responses to “Blizzard case becoming EULA test case”

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Virtually Blind | Virtual Law | Legal Issues in Virtual Worlds and Multiuser Online Games | Benjamin Duranske wrote on July 1st, 2008 at 12:14 am:

now Blizzard has responded to Public Knowledge, and their argument isn’t all that new. They…: “now Blizzard has responded to Public Knowledge, and their argument isn’t all that new. They…” Raph’s Website:Blizzard case becoming EULA test case: “Blizzard Responds to Amicus Brief in MDY Bot Suit | Virtually Blind | Virtual Law | Benjamin Duransk… Although it has not put the…” Loot Whores: Blizzard responds to amicus brief in MDY bot suit

Reader Comments

cliff said on June 30th, 2008 at 2:15 pm:
I’m inclined to think there’s a short answer here… don’t charge for the software. Charge the usual subscription fee (or whatever monetization scheme you choose) but don’t charge for the box. As a service provider, you are allowed to reserve the right to refuse service to anyone.

Of coz, the various AAA titles kinda need that box fee to defray costs some, but at the same time there’s some element to that which has more to do with getting more out of the short-term-players that any new game is going to get. If all you charged were a subscription fee, you’d get one month from a lot of the short-timers, whereas a box fee means more than triple the income from that crowd.

Maybe I’m being cynical, but I think my initial point is good.
Rob said on June 30th, 2008 at 3:51 pm:
What I’m worried about is that this is becoming a copyright matter. Cliff says “As a service provider, you are allowed to reserve the right to refuse service to anyone.” Now that’s not something they can’t already do without going to the courts.

My understanding of this particular case is, and correct me if I’m wrong, Blizzard saying: “Any time you use install or use any software you are making a copy. Making that copy whether to hard disk (installing) or to RAM (running the software) is a right held by the copyright holders. The EULA gives you license to make that copy, provided you also agree with the other conditions of the license.”

My issue with that is, if that’s true it means a few things:

a) You can be charged with violating copyright for minor infringements of the EULA. (Which for most users is very difficult to read, and also may change without notice, according to most EULAs)

b) Any software that you use that isn’t goverened by an EULA, is being used without authorization. If a user does not have the intrisnic right to make a copy of software which he purchases (in order to install and run the software) without it being explicitley licensed to him, then he would be in violation of copyright of any software that he uses that doesn’t have an EULA.

Blizzard claims that they’re not selling the software. That they’re licensing the use of the software to users. How is that communicated when you purchase the software? I don’t have a box with me now, but other boxes have some little inscription on the packaging that states “You must agree to licensing terms.”

I honestly don’t care if they can delete my character, or cancel my account or whatever manner of action they want to take against my virtual “assets”. But when it gets to the point where they can start suing me for copyright infringement that’s more worrisome.

From their EULA:

“Blizzard may terminate this Agreement at any time for any reason or no reason.” … “Upon termination of this Agreement for any reason, all licenses granted herein shall immediately terminate.”

So they can terminate the license with no notice, and then if I attempt to launch the software again, I could now be liable for copyright infringement?
Spaz said on June 30th, 2008 at 3:55 pm:
Solution: Download is free. Subscription – $50 for the first month, $10 for each additional month! Just like the old 1-900 numbers in the 80’s or phone cards today. $4.99 for the first minute, 99 cents for each additional minute!

In reality that might turn a lot of people off because they are inclined to think they should get their first month free, because most games have done that in the past. The idea was that they already paid for the box. Even though they wouldn’t be paying for the box, there’s something that would make people balk at a subscription fee that high vs. a box sale of the same price.

Still, it could work. Start pulling all the health-club and cell-phone shenanigans – agree to a longer term contract and you get a lower rate, but you can’t cancel it or you pay a penalty… it all might just come to pass.
Morgan Ramsay said on June 30th, 2008 at 4:11 pm:
[quote comment="138793"]What I’m worried about is that this is becoming a copyright matter. Cliff says “As a service provider, you are allowed to reserve the right to refuse service to anyone.” Now that’s not something they can’t already do without going to the courts.[/quote]

There’s precedent that service providers cannot refuse service to anyone.

Look up the legality of ladies’ nights.
Eolirin said on June 30th, 2008 at 4:22 pm:
That’s not a solution Spaz. It doesn’t actually deal with this situation. Nothing about this case has anything to do with Blizzard’s ability to police their own servers, and entirely to do with the rights of PC owners to do whatever they want to the software that exists inside their hard drives (where such things don’t cross into criminal regions like cracking copy protection methods or reverse engineering for the sake of patent violations).

If the court agrees with the stance in the Amicus Brief, then even if they give the software away, WoWGlider still wouldn’t be in violation of copyright law. They’d still be able to ban anyone they wanted for using it, because that’s a service contract and violating the terms of the service contract is sufficient to terminate your account. But they can’t shut the program itself down on copyright terms because it duplicates part of the program into ram. Has nothing to do with the cost or sale of the software but with the concept that the software, the code, the bits that run on the OS, are in fact not yours, even though they’re on your hardware. This is rather insidious, because it means that you have no right to even delete the game if the uninstaller makes a copy, no matter how partial, into ram, if they’ve decided to revoke your license agreement, at least not without violating their IP rights.

The concept that you can own the hard drive platters, the ram chips, and the CPU, but not the bits etched on them or flowing through them is pretty crazy. And that’s what Blizzard is trying to say. Even though it’s on your stuff, you have no control over our software that we don’t explicitly allow you. This is a very dangerous stance, and one that needs to be stomped hard. Blizzard needs to lose this case.

Btw, didn’t you post this already Raph? Like, a week ago?
Eolirin said on June 30th, 2008 at 4:32 pm:
@Morgan, they’re still allowed to refuse service to people that are actively disruptive, no?

Pretty sure that has nothing to do with gender or race or religous protections, which are typically what those laws protect against. They don’t protect against rowdy behavior, inappropriate dress, illegal drug use on the premises, or anything else that’s down to the activities of the customer and not the inherent traits of the customer.

This becomes slightly messy, since anyone an claim disruption for whatever reason, but that’s where the courts step in. WoWGlider is likely to pass the disruptive test in terms of Blizz being able to ban over it. So this isn’t a service issue. They’re trying to strong arm the WoWGlider people into non-existence so that the program goes boom.
Scopique said on June 30th, 2008 at 4:43 pm:
To me, a lease means that I have to return it, like a leased car or leased furniture (*shudder*). Technically, unless Blizzard comes to my house to repo my WoW, or chooses to shoot their cash cow and close the servers, what can they physically do to me that doesn’t involve throwing their wallets into a crowd of lawyers and leashing them to do their bidding?

I think that most end users consider a lease to be what they do with an apartment, car or furniture, not what they do with software. When I buy a box of software at my local Charge U Moor, it’s just like buying a pack of batteries: I’m buying it outright. The notion of making me “sign a contract” AFTER I have paid the money seems a little like underhanded entrapment.

People don’t give Stardock the credit it deserves — they really pioneered direct downloads (before Steam), and they eschew copy protection. They trust and treat their users with respect and know that when you put out a quality product, people will buy it to support more quality work. Sure, there will be pirates of unprotected software, but there are pirates of PROTECTED software as well.
Brask Mumei said on June 30th, 2008 at 5:20 pm:
What annoys me as a software vendor is that the EULA grants such beautiful language to deny all warranty, fitness for purpose, and other claims, that to see it destroyed by a greedy company seeking to enforce the draconian terms depresses me. Having EULAs go up for test is scary because if they fail, so do all of the nice protections for the buggy software produced. Is punishing WowGlider really worth having to deal with fitness-for-a-purpose lawsuits?
Eolirin said on June 30th, 2008 at 5:34 pm:
…

@Brask, oh I dunno, I think it’s totally worth it as a consumer.
Don said on June 30th, 2008 at 8:08 pm:
[quote comment="138807"]What annoys me as a software vendor is that the EULA grants such beautiful language to deny all warranty, fitness for purpose, and other claims, that to see it destroyed by a greedy company seeking to enforce the draconian terms depresses me. Having EULAs go up for test is scary because if they fail, so do all of the nice protections for the buggy software produced. Is punishing WowGlider really worth having to deal with fitness-for-a-purpose lawsuits?[/quote]

That’s what the severability clause is for.
Peter S. said on July 1st, 2008 at 12:02 pm:
A few quick legal points:

1. As a contract of adhesion, it would be almost impossible to prosecute “minor” EULA violations. The only needed defense is a believable “if I knew it was against the rules, I would not have done it. I thought I had the right / had permission to do it.” Provided it’s reasonable (in the legal sense: is a reasonable person in the same circumstance likely to reach the same conclusion or think the same thing?), there is no suit. Granted, that doesn’t make one immune to having to appear before a judge, but there are laws about malicious prosecution [insert discussion of overall efficacy of our legal system here].

2. Copyright law does not generally extend to purely private use, though it is fuzzy. Under prior-to-this-lawsuit law, you can tinker with software any way you like provided it stays solely on your own computer (same way you can scan in a photo from a magazine and play with it as much as you want in Photoshop, and not violate copyright by creating that scanned copy). It’s when you begin distributing it in some fashion that you get into clear copyright trouble (as distinct from EULA-trouble), as then you can be said to be causing harm to the copyright holder. There are protections against unlawful copying, but not all copying of a copyrighted work is unlawful copying (Fair Use and all tha; otherwise there would be few to no ways to create derivative works, which are also protected under law).

3. Thus, the really tricky question in here is whether selling or distributing a kit designed to easily modify someone else’s work, that does not itself contain anyone else’s work, is a violation of copyright. The modification is being done privately by the purchaser of the kit, and you aren’t distributing something that in-and-of-itself is a violation of any copyright. There’s an argument that it aids in the violation of a copyright (that is, it thus aids in the commission of a crime and is for that reason illegal), but that would only be true in cases where the person purchasing the mod kit then distributes (or intends to distribute) the modified item. A mod kit may certainly violate a license agreement, and may certainly cause harm to the holder of the copyright on the work being altered (a software crack is a mod, in a certain sense), but whether existing copyrightlaw is able to address that… well, there are probably precedents that I’m simply not aware of (IANAL, I think is the right acronym). It will be very interesting to see what happens.

As a side note, remember that an average reasonable person is likely unaware of how a computer *actually* runs software, and thus could not be said to be aware of all the copying back and forth that goes on invisibly under the hood. That is fairly specialized knowledge, even if we’re all that sort of specialist. I would anticipate that a judge would rule that this automated and necessary process is not “copying” as used under existing copyright law, no more so than the mirror of a rear-projection television is creating a “copy” of a television program.
Morgan Ramsay said on July 1st, 2008 at 1:29 pm:
There’s an argument that it aids in the violation of a copyright (that is, it thus aids in the commission of a crime and is for that reason illegal)

Hrm… What could we expand this argument to include? Guns aid in the commission of crimes and therefore should be illegal? Knives, too? Dimly lit alleyways? Hands? Cars? Money!? Preventative law is simply oppressive.
Peter S. said on July 1st, 2008 at 5:04 pm:
Let me be more specific: it (could be argued it) is a tool designed specifically to aid in the commission of a crime, like lockpicks. Particularly in the case of a software crack “mod”.
Eolirin said on July 1st, 2008 at 6:57 pm:
@Morgan,

Nah, more like drug paraphenalia, which in most places *is* illegal. If the actions that WoWGlider takes are in fact illegal, then since WoWGlider can *only* be used to do them, and can never be used for any legitimate purposes it’d be considered illegal. Your list is full of items with legitimate uses. This was the defense used by peer to peer filesharing programs btw, and they were found legal because there were legitimate uses beyond copyright violations.

@Peter,

I’m not so clear on how WoWGlider works on a technical level, but as far as I can tell, it’s not actually stripping any copy protection, and the “copying” that’s occuring is the same “copying” necessary to run the program in the first place.

That’s why this whole thing is extremely silly. It’s basically stating that copyright of WoW applies to personal use in the same way that you mention in scanning a picture and photoshoping it without uploading it anywhere, except it’s going even further and stating that the actions required to use the software *at all* is something that they hold the exclusive right to license to you.

So you’re renting the program at best. This is very stupid. Software doesn’t deserve special rights in terms of how it’s treated. It’s a non-tangible item, but it’s still an item.
Morgan Ramsay said on July 1st, 2008 at 10:20 pm:
Nah, more like drug paraphenalia, which in most places *is* illegal.

There are more than several smoke shops in San Diego where you can legally buy bongs, hookahs, and other drug paraphenalia. There’s a grocery store down the street from me that sells and displays hookahs.

Outlawing a platform for use is a step ahead of recalling a product because the “wrong” market is using the product in “unintended” ways. Both are presumptious and typical behaviors of tyrants.

If the actions that WoWGlider takes are in fact illegal, then since WoWGlider can *only* be used to do them, and can never be used for any legitimate purposes it’d be considered illegal.

I’m familiar with the VHS argument. WoWGlider can be used for legitimate purposes on emulated WoW servers, which I believe are legal (e.g., WoWscape.) I think the fact that violating either the TOS or EULA is not criminal should be recognized.
Eolirin said on July 2nd, 2008 at 8:45 am:
Morgan, I totally agree on that last point. I think Blizzard really needs to lose this.

On the former, it’s also illegal in quite a number of places too. I wasn’t trying to comment on whether or not it was necessarily completely valid in how it *should* be done, because then I’d need to get into a discussion about whether or not drugs are validly illegal, or whether the artistic merit of the paraphenila as an object of art is sufficient grounds to bypass the argument, and I don’t want to go there, but in an extremely narrow set of circumstances, it’s possible to have an item that can only be used for a completely illegal purpose, and you can make a very strong argument that such an item should be heavily regulated at best, and banned at worst. And it wouldn’t necessarily by tyranical to do that, depending on the specific circumstances. It can easily tip over into that, especially if the action that it’s used for really shouldn’t be illegal, but it doesn’t *have* to.
Peter S. said on July 2nd, 2008 at 8:47 am:
@Eolirin

I’m not really speaking in terms of WoWGlider, but of the more general ruling over the class of software modification programs and packages. Truthfully, I don’t really know how it works either.

As far as renting versus buying, eh, I have to confess ambivalence. The license and rental model is already very well established, it’s just not often found in the personal software field (or rather, it hasn’t been until recently). I don’t like the model much, but when you talk about businesses having licenses for X users or a site license, these have been around for a long while now. I couldn’t tell you if it’s because no one has challenged them or because they’ve been challenged and come through.

That’s another way to look at the argument, too: is a license for one still a license? When does it become an item?

One last thing to add, is that legally I’d bet that the entire copyright angle is simply a result of “shotgun” litigation: you try every angle you can think of to hang your case on, so that you don’t get thrown out for lack of standing (or lack of applicability, etc.). WoWGlider, in Blizzard’s opinion, does clear harm to their product, service and enterprise. They now need to state which laws, if any, they feel apply. Better (procedurally) to have too many answers to that question than too few, and so it begins…

@Morgan

Yes, we live in California, and the laws have gradually gotten more relaxed when it comes to those sorts of paraphernalia (not that I feel that’s a bad thing). I still remember when you’d get kicked out of the shop for calling them anything other than tobacco pipes, though, and certainly in many other parts of the country all of that is still quite illegal.

True, violating the TOS or the EULA is, strictly speaking, breach of contract. But what WoWGlider does might (might!) fall afoul of more serious laws, for all I know, so I can at least see why it’s being presented to a judge. If it causes harm but does nothing illegal, Blizzard is still well within its rights to seek relief on those grounds, and it would still be up to a judge to determine whether an injunction against the distribution of the program was an appropriate remedy (though at that point it’s tort, possibly contract, but no longer criminal law). It isn’t just “wrong”: if that was all Blizzard had, the judge would be within his or her rights to simply toss their case out, and judges have a lot to do.
Moose said on July 2nd, 2008 at 8:45 pm:
The whole “copy into memory” business is bogus and has been bogus from the start. It was a neat dodge that a lawyer thought of as a way of enabling copyright law to be applied to use, thereby overextending the reach of EULAs. Almost no software had them in the 80s – they just had statements of copyright, and common sense. It’s like arguing that you need a license to watch a movie because each frame of the movie is copied onto your retina, and then parts of it are copied into your memory in your brain.
Morgan Ramsay said on July 2nd, 2008 at 10:02 pm:
Peter S. wrote:

the judge would be within his or her rights to simply toss their case out, and judges have a lot to do.

If the judicial system was actually as efficient as presented in the movies… I remember one of my law professors, who is a practicing attorney, talking about the various judges he had. One judge had a glass eye and what he’d do was hunch over the bench with one hand against his good eye… and fall asleep. The lawyers would do their thing and the judge would wake up and make his ruling. ;p
Peter S. said on July 3rd, 2008 at 9:10 am:
@Morgan

Hah! True. Having taken some law classes as well, I’ve heard several stories…

What is your law background, just out of curiosity?
Morgan Ramsay said on July 3rd, 2008 at 1:46 pm:
Peter S. wrote:

What is your law background, just out of curiosity?

If I weren’t a musician/marketer, I’d be a lawyer. I’m just a student. I enjoy legal studies because the various rules and arguments boil down to logic games. Challenging yourself to think ultra-objectively and uber-rationally is fun. I guess that’s why I actually get good grades in law courses. ;p
Peter S. said on July 3rd, 2008 at 4:22 pm:
@Morgan

Heh, you and I would probably get along great in meatspace. I’m just a student; my urge to learn so many different subjects led me to a grad degree in Environmental Science, and I still feel like I’m just a student. I loved my law classes. If it wasn’t for the extra four years of school and few hundred thousand of loans (and if I didn’t love my work), I’d be a lawyer. May still be someday.

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