Installing = making a copy
An interesting issue which should have come to a court ages ago is being surfaced by the MDY v Blizzard suit.
As you know, most of the time when you do something on a computer, copies are being made. In fact, a LOT of copies are being made (see my old post on microtransactions for a more detailed analysis and historical point of view on this). In particular, installing a piece of software means getting a copy on a disk, copying it into memory, then copying it from memory onto your own disk, then reloading it into memory every time you launch it.
So, Blizzard put a copyright claim in their suit against MDY, makers of WoWglider. And a third party called Public Knowledge, which advocates for digital rights, filed an amicus brief (“friend of the court,” basically a side opinion because they feel they have a stake in the case) which argues that the copyright claim is, well, bogus.
The issue is essentially this: Blizzard claims that when third-party programs like MDY’s Glider (which automates certain World of Warcraft tasks) load World of Warcraft software into a computer’s RAM, that “creation of a copy” violates the copyright Blizzard holds in its software.
Public Knowledge argues “that Blizzard doesn’t have a claim on copyright grounds because the right of users to make the copy for use by the computer is already guaranteed by law. […] Therefore, Blizzard cannot claim any infringement of its copyrights based upon the creation of RAM copies because the right to make those copies was never Blizzard’s to license in the first place.”
This has broad relevance outside of this one case. So it’s particularly interesting that the judge in the case has now ordered Blizzard to answer this issue specifically.
17 Responses to “Installing = making a copy”
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There’s a precedent supporting Blizzard’s view.
Heh, when I saw this in my RSS reader, I was sure I was reading something from Slashdot at first… But, it was far too long.
Anyway, I have to admit that if Blizzard won this case, I would be frightened for future implications this could have. I’m not referring to the effect on bot programs either…
Imagine buying a game (or any other software for that matter) and only being able to install it once because you only bought one copy. Some DRM technologies already place limits eerily similar to this on the software they “protect,” effectively treating even legitimate users as suspected criminals. I shudder at the potential ramifications if Blizzard wins this particular argument.
This is kind of important for a whole variety of reasons, and not just with games. Keep us updated Raph, it’s a rather interesting issue (although of course, US-centric, I am not sure Europe has had similar ruling or not).
Though I do want Blizzard to somehow win their case against cheaters like Glide…
Using this particular argument, and what precedent it would set, scares me.
Sounds like they are are going for Glider as a derivative work, which requires some insight into how it interfaces with WoW…
@Armstrong: dunno about rulings in Europe, but IIRC copies are reproductions, volatile or not. But, you are also allowed to do the reverse engineering required to interface with other systems/software (except for breaking protections…). I don’t think you can deny others the right to make compatible systems that interface with yours.
I think that this could be debatable under the DMCA… given that if no API is published, you may well be “breaking protections” by definition. At least that’s the way I understand this common argument.
Europe has moved somewhat closer to DMCA in recent years, but I don’t think most countries go as far as US IP-laws, so I believe “protection” is understood as copy-preventing mechanisms (decoders). At least in my country. AFAIK the right to reverse-engineer is still upheld here. IIRC the requirement is that you either try to interface to the system/data or that you are trying to fix an error in the system, but yeah decoders have recently been exluded. (DVD-Jon didn’t break the law, but today he might)
I think Blizzard should be allowed to do this, provided they apply the law fairly and evenly, and don’t let Windows and OSX make “illegal duplictaions” of the software into ram either. 😛
At some point, the software industry will have to own up to having destroyed other digital product industries while attempting to protect their own from illegal copying. The Duran Duran mentality (not the band, see Barbarella) has a predictable outcome.
Those who enable copying will make more money than those who disable it. Of course, how the money gets divided is the Big Issue. The digital haves and have nots become as evident as the haves and have nots among hedge fund investors, the oil companies and so on.
The question is, what is the demarcation for “obscene profits”?
The Silly Valley chickens are coming home to roost. 🙂
A page from the BNETd case? Aside from the misspellings in that document, the outright untruths read kind of like a forum post. I mean, consumers gain no rights through a single purchase transaction? Does the “immersive WoW experience” come with a 30 day sub you do NOT have to buy separately?
You can’t have that experience if you just buy Glider and do not purchase WoW. Seems to me the spirit of this law is to protect against copying in lieu of payment. Not the case here unless they want to argue full and fair is catassing every alt through stories people already read multiple times.
Oh and the comment about breaking protections… I agree with that, in that you shouldn’t necessarily need 256 bit encryption to win a copyright case… where the copying was done, again, in lieu of payment.
@robusticus, I believe payment, copyright and protection are 3 separate issues. Banning people from unlocking a (virtual) box they purchased is quite a new and intrusive direction from the lawmakers, but it doesn’t affect copyright as copying the locked box without permission is already illegal… I don’t think Glider unlocks the box though, it is more like purchasing rubber-feet for your box, making your box better than other boxes… Is it reasonable to sue other people for providing rubberfeet to the box you are selling?
My gut’s feeling is that if WoW is an artwork then Glider might constitute vandalism, but they know that won’t work so they try whatever loop-hole they find hoping some shit will stick to the fan… *sighs*
@robusticus
It’s more an issue of them trying to shift the line where IP rights start and end. They’re trying to claim that their rights to the software exceeds the user’s rights to use the software. The EULA effectively states this, basically just granting you the right to use the software in limited ways. Bliz is effectively saying that you can’t use their software outside of how they want you to use it, because you never owned it to begin with, and any ability for you to actually *run* the software is entirely at their discretion. If for whatever reason they’ve decided that you’re violating the license agreement, they’d want to be able to prevent you from even starting the program. You can’t run a program if it’s not loaded into ram after all.
If we treat software as an actual product and not a service, and the way it’s purchased sets us up so that we do, then this flies in the face of pretty much every fair use law on the books, though most of those have been short circuited by the DMCA anyway.
It seems to me that they would be on much firmer ground if they attacked this from a server standpoint.
You can run glider all you want, but using a third party program violates our TOS so you cannot log onto our servers. I think this is within their right.
Of course, they want to kill the program so they are trying this route.
If the judge/lawyers find some loophole in the laws and license agreements that makes botting legal, then the laws and license agreements need to be changed.
Botting isn’t illegal, and it’s *never* been illegal. It’s a TOS violation, which means they have every right to terminate your account over it, and that’s fine, because your account is part of a service contract… but you shouldn’t be able to be tried under criminal or civil courts for doing it. Honestly, if there are going to be any legal loopholes found they’ll be ones that show that it’s illegal, not that it’s legal. If that happens we face a huge loss of customer rights, because this would do more than just hurt botting; it’d effectively state that we can’t run any software without the authorization of the creator, even though we’ve payed for it.