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Blizzard scores win against WoWGlider

July 15th, 2008 (Visited 1699 times) Tags: blizzard, vw law, WoW, wowglider

Virtually Blind has the scoop, but in short, Blizzard won on all the major points: the court didn’t go for the copyright argument, saying they were bound by precedent and not a policymaking body; and that making this kind of software looks like tortious interference (meaning, interfering with the contract between Blizzard and users). Further analysis at TerraNova.

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Reader Comments

Eolirin said on July 15th, 2008 at 3:41 pm:
Sigh. I hope this doesn’t end up with EULAs becoming wholly legitimized. Much of what they do is tantamount to signing away user rights, and I really don’t like that. I’m getting very tired of living in a society that protects the people making money and not the people spending money.

That being said, I’d have much less problem with this stuff if it only spoke in terms of willful aid in violating the Blizzard/User contract, as it applies to the live game. Because that’s definitely a service, and I’m okay with contracts for services. Having their software installed on my PC is *not* a service, though. And there’s no reason why there should be any copyright violations for doing *exactly* what the operating system does just to run the bloody thing.

And at least some of the DMCA charges have failed due to the fact that there’s no bypassing of security happening.
Andrew Smith said on July 15th, 2008 at 8:32 pm:
Blizzard Wins vs. Glider: What it means for the virtual currency market

We posted a blog post on this over at GameRates.com on what this means for some other ToS/EULA violators such as virtual currency sellers.

“What does this mean for the gold industry however?

First off it may embolden Blizzard to actually take on major gold sellers in the courtroom. However, this could be a very dangerous move as if they lost or perhaps a U.S court found that virtual currency has real worth it could awake the sleeping giant of legal problems. For example if Blizzard bans someone accidently, or it�s servers crash, or they nerf an item all which destroy virtual goods (with real legal value) in the process one may be able to sue Blizzard for these �real� damages caused. For this and many other reasons we doubt that such a case will arise although the reverse may be true (a gold farmer suing blizzard for preventing them from selling its legally acquired in-game goods for cash outside the game). For those of you that have been around for a while you may remember the BlackSnow Case against Mythic where such a thing happened.

Still the scary thing is the wide ruling that violating a Terms of Service (ToS) or End User License Agreement (EULA) that you haphazardly click every time you play the game can be counted as copyright infringement. An EULA can say virtually anything it wishes. Does violating any part of it really count as copyright infringement? If you choose to farm items by hand using normal game mechanics without interfering with anyone else and then you mail the items you acquire to another person that is fine (it would be considered �twinking� a friend or new character), yet if you do the same action and the person sends you $10 through PayPal for the gift is it then considered a copyright violation because it violates Blizzards ToS?

That�s ridiculous and as such we don�t see the case ever being applied to the virtual currency market.

In fact we think that if the case is appealed it has a very good chance of being reversed. It�s simply too broad in its scope”
Kerri Knight said on July 16th, 2008 at 8:47 am:
I�m getting very tired of living in a society that protects the people making money and not the people spending money.

While I might agree with the overall argument that our laws protect corporations and businesses far more than consumers these days, please remember that Blizzard spends more money that most people will see in their entire lives in hosting and development costs every month. If you don’t agree to the ToS/EULA, the ‘decline’ button is there to be used for that purpose.

Having their software installed on my PC is *not* a service

No, providing you with an account that allows your client to access their servers (at their owned/leased hosting facility, on their owned/leased machines, juiced with power they pay for, running code they paid to have developed, etc, etc).

We can have the same discussion about the langauge policy, people daily throw threads up about how Blizzard should be sued for censoring people in a free country. Bottom line, go to your neighborhood restaurant and start cursing in loud voices, when the manager throws you out, cry to him about ‘free speech’ and watch him laugh. Its the same case here, someone shows up, abuses the intended system, changes the atmosphere and mood of the game. I’ve typically compared the gold sellers to some hack running around in a business’s parking lot, shouting “pay me a fee and I’ll do all of your shopping for you!”. Businesses don’t want that, they want the customers to come inside, and so they have every right to toss this guy off the property that they paid to have the right to operate as they see fit.

Please remember that businesses employ people and spend money which allows other businesses to employ people and spend money.

I’m getting very tired of living in a society where people forget how interconnected we are and think being ‘the customer’ means they can walk all over businesses intended operations and disrupt the experience of their fellow customers.
Morgan Ramsay said on July 16th, 2008 at 12:41 pm:
I�m getting very tired of living in a society that protects the people making money and not the people spending money.

Everyone is a consumer. Businesses are consumers on a larger scale.

Individual consumers have more protections than they know and tend to believe that their only recourse, when wronged, necessitates tremendous expense. To correct this problem, we need to develop a culture of learning, of sharing information — of social responsibility. That’s one of the goals of the association I’m starting.
Eolirin said on July 16th, 2008 at 10:52 pm:
@Kerri, and I have no problem with them terminating accounts. That’s not what they’re saying here though. This has nothing to do with free speech, or the servers, or the access to the game itself. It has nothing to do with playing the game, but in what sort of access you’re allowed to the bits of code on your own hard drive. It has nothing to do with gold selling or WoW Glider itself, but it does have an awful lot to do with you not having control over the contents of your hard drive. Loading part of the software into ram is something the OS has to do just to run the program. To assert that you can claim copyright infringement that standard action is done in a way you don’t like, especially when that content *never directly touches the game server* is ludicrous. I would never assert that Blizzard does not have full right to ban anyone found using WoWGlider, and I’d have less reservations about them going after WoWGlider on the grounds that they exist solely to aid people in violating the terms of the account contract, but I have a huge problem with them claiming copyright infringement on the grounds that the program makes what would otherwise be a perfectly legal duplicate of a string of 1s and 0s that are stored completely on the user’s hard drive.

This is equivalent if you want to talk restaurant analogies, to being sued for altering some food you took home in a way that the restaurant didn’t like.

But again, for emphasis, I have no problem with Blizzard taking action against WoWGlider users, or even if they want to go with the “deliberately interfering with the user contracts” thing that’s fine too. But they’re going beyond that. And I don’t like it one bit.

Furthermore, this is disingenuous at best:

please remember that Blizzard spends more money that most people will see in their entire lives in hosting and development costs every month

They also make an order of mangintude more in revenue every month than most people will see in their entire lives. What’s your point?

@Morgan, eh. Couch it however you want, larger scale “consumers” do get preferential treatment, especially under the current administration. Hopefully going forward that starts to trend back, but many consumer rights have been eroded over the last few decades. DMCA basically destroyed many fair use protections by making it legal to have a backup copy for archival, but illegal to actually make it, bankruptcy laws have been changed to prevent the average person from ever being able to get out of debt while even greater leeway is being afforded large corporations, various lawsuits have been quashed and legislation passed that prevents people from suing pharmaceuticals for mercury poisoning… I could go on. Yes, there’s more things that the average person has access to than they know about, but don’t for a moment try to posit that there’s equity.
Morgan Ramsay said on July 17th, 2008 at 12:30 am:
@Morgan, eh. Couch it however you want, larger scale �consumers� do get preferential treatment

Oooh, feisty! Businesses acting as separate entities are consumers. No need for quotation marks. In addition, businesses are comprised of individual consumers. Protecting businesses protects a lot of consumers.

but many consumer rights have been eroded over the last few decades.

I’m not sure that’s true. I’ll probably be getting in touch with Consumers International to see how the association I’m starting can share their vision. So I’ll check.

DMCA basically destroyed many fair use protections by making it legal to have a backup copy for archival, but illegal to actually make it

You know that nearly everyone, even consumers, holds copyright on something and all are thus covered, right? The other matter is fair use, an allowance under copyright law, which shouldn’t be construed as a matter of consumer rights.
Siddar said on July 17th, 2008 at 3:19 am:
Mmog companys have been far to timid in defending there games in court.

Glider/Marcoquest/goldsalers/ebay all alter the game and both prevent a Mmog company from saleing a unaltered game while also preventing others from buying the unaltered game. In a single player game programs like glider may break the eula but dont stop a game company from continueing to sale a unaltered game are other people being able to buy and use the unaltered game.

Once the courts grasp those facts and the ruleing above seems to be heading strongly in the direction the gavel is going to drop on those behind programs like glider and major gold salers like a sledge hammer.

The anti EULA crowd should cut there losses in the Mmog fight and start makeing the argument that Mmogs are just different from other forms of software and that difference justifys a high degree of protection. If they try and fight it out with Mmogs there going to loose and loose badly.
ZippyDSMlee said on July 17th, 2008 at 2:56 pm:
2 things I see here 1 is when the user made program changes stuff server side thats an issue, but I do not see an issue with with messing with a program you are paying money for, blizzard should incorporate a mode/setting like Glider and give people X amount of time to do basic leveling/gold
raising with a away message, you get 10 hours a month and anything over that you need to pay a buck an hour for, one of the troubles I see in MMOs is they want you to paly the game as they see fit not seing some people can not stand the poor mechanics of MMO grindage for long or wont to play but don;t want to invest the time, its getting time the MMO makers need to let people buy levels,items,gold ect, or better yet take the grind out of it with a premium class of characters that are overpowered and fun in comparasion to the normal month to month peeps charge an extra 20-40$ creation fee for a Over class character do something to to move MMOs away from the grind!
Morgan Ramsay said on July 17th, 2008 at 3:16 pm:
but I do not see an issue with with messing with a program you are paying money for

You don’t buy software. You buy a license to use software and access services.
Eolirin said on July 17th, 2008 at 4:13 pm:
@Morgan

Protecting businesses protects a lot of consumers.

Sometimes, yes, sometimes no. Do not ignore the issue of scale or special access to things beyond the reach of an individual consumer.

You know that nearly everyone, even consumers, holds copyright on something and all are thus covered, right?

Disingenious at best Morgan. Only people capable of applying DRM to their products are protected by the DMCA in the manner I mentioned. Non-commercial work isn’t any more protected than it was before hand, and commercial work now sidesteps fair use. Which, I’m sorry, is effectively a right owed people who purchase a copy of a copyrighted work. I don’t care if you want to use narrow techincal definitions to attempt to ignore that point, it’s still a right that protects people who purchase media. The archival copy rule can only be viewed as that, since, hey, you have to own a copy first!

You don�t buy software. You buy a license to use software and access services.

Which is crazy stupid, sorry. Whether or not it’s in the best interests for the company to assert that or not is irrelevant, it’s still stupid. Compiled code should not get preferential treatment over physical itmes. If I can cut up a picture I own I should be able to decompile software I’ve purchased or reverse engineer it, or whatever, as long as I don’t publish derived work or otherwise benefit from or hinder the ability of the originator to make money off of it.

So I have no problem with Blizzard going after WoWGlider on the grounds that it costs them money, but the argument that WoWGlider’s techincal aspects are infringing on copyright is morally wrong, regardless of whether or not it’s legal or supported by precedent. It denies me rights to property and unjustly grants special privledges to software that do not exist for any other item. It basically says that you can own your hard drive but not the contents on it, than because bits aren’t physically tangible that they deserve special treatment. Digital content should not be treated any differently than any other content. There’s absolutely zero justification for it.
Dan Rosenthal said on July 17th, 2008 at 6:02 pm:
Only in the 9th circuit, and the MDY court acknowledged that the logic was debatable and possibly distinguishable from the controlling case (MAI), and should (will) be brought up on appeal.

Fact is you’re not buying a license, you’re buying software that is subject to contractual limitations on use. If it is a license, there’s a strong argument that it is substantively and procedurally unconscionable as a contract of adhesion, because one party has complete termination power without legal recourse from the other party (binding arbitration).
Kerri Knight said on July 17th, 2008 at 9:00 pm:
No, the restaurant analogy was still spot on. The presence of those conducting themselves in a fashion the restaurant frowns on can be removed for that reason.

For any reason.

For no reason.

You’re arguing property rights, what about the rights protecting those who have spent millions (billions?) developing and providing a product/service? Those are the same rights the resaurant operator has to determine who may or may not come onto the property they paid to have say-so over.

You can probably alter the game code on your machine and play with Wowglider to your heart’s content….on a rogue server. Blizzard pays for the bandwidth the traffic a Wowglider user adds to their network load. Yes, they have every right to turn off access. In actuality, they are declining that person’s business, based on the principle that it protects the integrity of the game as they intended it (something I wish more businesses would do, quite frankly!). I say this with a tongue-in-cheek because I see it as they intend the game to be a giant unending time-sink. But those willing to do it are the customers they want.

The recourse consumers have is called being selective and educated. A poor reputation should be followed by a loss of market share and by extension, market value. Maybe the problem is consumers need to stop being blind sheep and nodding heads at every face-saving press release, blind to track records and patterns of behavior.
Morgan Ramsay said on July 17th, 2008 at 11:47 pm:
Eolirin wrote:

Sometimes, yes, sometimes no.

No, always. Who do businesses employ? Ah, yes, consumers. Lots of ‘em.

I don�t care if you want to use narrow techincal definitions to attempt to ignore that point

Definitions agreed on by 220 organizations across 115 countries, including over 10 governments and the United Nations, are “narrow” and “technical”? Laughable.

Which is crazy stupid, sorry.

You license intellectual property for specific uses. You don’t buy intellectual property. You can’t buy intellectual property. You can assign intellectual property rights, which is why there’s no such thing as an intellectual property “owner” and why there is, however, such thing as an intellectual property rights holder.

When you “buy” intellectual property, such as a video game, you’re purchasing a license to use that intellectual property in specific ways. You’re not engaging in the transfer of intellectual property rights to your holding. You’re just paying for an assignment of limited rights. I’m disappointed that you don’t know that, but that’s how intellectual property law has worked for decades.
Eolirin said on July 18th, 2008 at 6:06 am:
From being kicked out of the restaruant Kerri. The problem is that this has nothing to do with the actual server or the account of the user. I have no problem with them banning people, and I have no problem with them protecting their work from distribution or loss of revenue, but that’s not what I’m objecting to. I’m objecting to them saying that it’s a copyright violation to load their software into your own system’s ram without their permission.

VERY different things. Because according to them, no, you can’t alter their game code even with a rogue server, because the simple act of loading it into ram is a copyright violation if they didn’t okay it first.
Eolirin said on July 18th, 2008 at 6:46 am:
Oh, and also Kerri, I dunno what country you live in, but, in the US at least, a restaurant cannot kick you out for any or no reason, and really, neither can Blizzard. We have anti-discrimination laws for a reason, and contract law prevents the termination of a contract without reasonable grounds. Use of WoWGlider is almost definitely reasonable grounds mind, but they can’t just terminate your account for no reason. The line in the TOS that says that they can terminate your account at their discretion isn’t likely to be legally binding if they use that power capriciously, since you can’t sign away rights.
Kerri Knight said on July 18th, 2008 at 7:20 am:
So now you’re arguing against property rights…

…I’m confused.

If I toss folks out who don’t mesh with the atmosphere I want, thats protecting my investment. Playing the discrimination card is just a manipulation of public opinion as backlash. When I worked at the movie theatres, I was constantly bombarded by endless claims that “you can’t throw me out, this is public property”. Again the same in the parking lot as their drunken nonsense became a bother to people there, too (still private property). Then, naturally came the “you’re discriminating” protests as people have to create excuses to deny their own poor behavior.

We tossed out noise-makers because they were disruptive to those around them. Blizzard is tossing out those who they feel are disruptive to the atmosphere they desire.

The game code is their property, if they don’t approve of you copying it, that is their right.

The hard drive and memory are your property, if you don’t want their code in it, that is your right.

They have the right to say no.

You have the right to say no.

Neither of you have the right to force the other to say yes.

If Blizzard objects to your copying (and altering mid-stream, I might add..but not a necessary qualification) their property, you don’t get to blow them off and sneer while dancing around ambiguity.

(You and I in these statements are not meant as absolutely binding pronouns, btw :9)

You aren’t even populating memory space yourself, you launched an application (written by Blizzard) which contains code (copyrighted by Blizzard) that tells the operating system (owned by someone else) to send data from the hard drive onto the motherboard traces leading ultimately to your memory modules.

You can’t copy the game into memory without using code that someone else holds the copyright to.

Enjoy those precious hard drives you own, entirely useless without the hard work of thousands of other parts (physical or not) created by thousands of other people.

I can put stolen goods inside my house, that doesn’t protect them from being seized once my crime is discovered.

I can broadcast copyrighted material on file-sharing applications right? I’m just copying 1s and 0s from my hard drive to the memory and sending them out the network adapter, all of which I own.

Self-deception and moral ambiguity do not impress me in the least.
Peter S. said on July 18th, 2008 at 10:10 am:
One clarifying point may be necessary:

US Code Title 17, Chapter 1,
� 117. Limitations on exclusive rights: Computer programs

(a) Making of Additional Copy or Adaptation by Owner of Copy.� Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Quoted from the Cornell University Law School website. Highlight is mine. This, I believe, is the crux of the copyright argument, in terms of the law on the books. WoWGlider was using that copy in RAM in a manner which was not intended, and was in fact expressly prohibited in the EULA.

As such, I can’t disagree with the ruling as presented. The ruling does indirectly establish the validity of the license relationship (versus the sales relationship), but again, in my mind this has been established for some time (whether I like it or not).
Peter S. said on July 18th, 2008 at 10:35 am:
Also, on the topic of kicking folks out of restaurants, let’s really not go there. We don’t want to end up in a discussion of what constitutes a protected class.

Try this analogy:

You build a big barn, and you decide, for fun, to let people come in and paint things on all the walls. You charge a small fee for the paint and such, and you tell people they can do whatever they want provided:

1. No crude images or words.

2. Don’t disrupt other people’s fun.

Now, someone comes in, pays, but does in fact start painting crude images in places. They aren’t directly disruptive, but the images they leave behind tend to be. Yes, you can certainly kick them out, but the question is, have they also damaged your barn by how they behaved? If so, don’t they need to repay you for that damage?

Now, to more precisely fit the analogy, let’s say someone decides to stand outside your barn and sell stencils of crude images to the people heading in. Is that person causing harm to your barn? What can you do about it?
Cybercat said on July 18th, 2008 at 11:44 am:
For the movie/restaurant claim, you can kick someone out if they violate your stated rules of entry (on the back of the ticket for movies and common house rules for restaurants). In most cases, you still have to give this person their money back, even if they called you a dirty whore. If you REFUSE to give their money back, they can stay on the premise until you refund it or they are ordered off by law enforcement.

This is not the same as an EULA. EULAs have most commonly been unenforceable due to the litigious nature of them, the fact you have to buy the product first and the fact that the product in this case is presented, sold, and played as a “normal” piece of non-licensed software. Not to mention EULAs heavily favor the writer and occasionally are worded to strip rights they cannot actually take away in the first place.

The problem specifically with Blizzard’s interpretation attempt, is that if Glider presented their own EULA which contradicted Blizzard’s EULA, there is no way to presently argue for who’s EULA is the winner. If Glider’s agreement said it doesn’t allow other software to conflict or turn it off without permission from the user, then what? Blizzard would have to make another amendment saying that Glider’s amendment was invalid if running their game. And so on. It turns into a big game of one-up manship.

The common sense thing to do is ignore both EULAs and have Blizzard continue banning people. It solves the problem of who has the better lawyers, and lets both parties continue their business as normal, which in the end, harms nobody (don’t even get me started on what a debacle “financial damages” would ensue from claiming gold sellers using Glider are destroying their player base :P).
Peter S. said on July 18th, 2008 at 12:00 pm:
EULAs have most commonly been unenforceable due to the litigious nature of them, the fact you have to buy the product first and the fact that the product in this case is presented, sold, and played as a �normal� piece of non-licensed software. Not to mention EULAs heavily favor the writer and occasionally are worded to strip rights they cannot actually take away in the first place.

Quick point: the existence of bad EULAs does not preclude the existence of valid EULAs. To the topic, the fact that many people cannot seem to create a non-objectionable EULA does not mean that Blizzard’s EULA is objectionable or flawed.
Kerri Knight said on July 19th, 2008 at 8:15 am:
EULA or no EULA, property owners have rights.

I see as much attempting to use the EULA to hamstring the companies in this discussion as people decrying how the companies are so viscious with them.

Tell you what, we’ll keep heading down this road of people insisting nobody can tell them what to do or not do on/with someone else’s property. When nobody is willing to take a risk and start a business or innovate because of the behaviour that emerges, then what? Why do I get the feeling we’re already at that point? :9

Again, if the property owner is abusive with their rights (kicking people out for frivolous/no/bigoted reasons), then that place will earn itself a reputation as such.

It might take law enforcement showing up before removal occurs, but the decision generally comes from the owner or an owner’s authorized agent. We had off-duty police (in uniform) as our weekend security. When there was an issue that did not involve a law being broken, they wanted the words to come from my lips before they would haul someone out.
robusticus said on July 23rd, 2008 at 2:49 pm:
So Kerri, do you agree then by property rights without exception, people can feel free to disable Warden because it is running on a PC they own, via bandwidth they pay for?

Would you think it’s right to kick people out of your restaurant for swearing if they were being very quiet in their own booth? But if some other customer came up to them, sat at their booth and listened to what they were saying and reported to you that they used a bad word, would you boot them? Or better yet if you had a bionic ear and could automatically know when someone used a bad word, would you kick them out for it, without a refund?

If someone used a dietary supplement to gorge themselves at your all-you-can-eat buffet, would you think you had an injunction case against the maker of the supplement, as a restaraunt owner? If you could go to all of the stores and destroy all of the supplements and you did, by rationale that you own the restaurant, would you think the maker of the supplement had a case against YOU? Or at least when you did end up sueing the supplement maker you could successfully claim that destroying the supplement was your right as OWNER, and thus their actions to prevent the destruction of their business constitute contractual interference?

Besides, impairment of free speech is a root cause of all the strife in the world. I would think you would need a better reason to allow the impairment.