Blizzard to include FBI warning against Copyright Infringers?

The controversy
If you hadn’t heard yet, Blizzard effectively won it’s case against MDY (read the summary judgment). The central issue at the heart of the Blizzard v. MDY case has always been about copyright violation. It’s not about whether or not Glider users break the Terms of Use, because no one (not even MDY) has ever argued that they don’t break the TOU. No… the central issue has always been whether or not breaking the TOU is a copyright infringement or simply a breach of contract. If it’s a breach of contract, well then, third parties are allowed to interfere with contracts all the time. But copyright, unlike contract law, is heavily enforced with onerous restrictions and high statutory damages.

And that’s the rub… copyright law has such onerous restrictions and high statutory damages BECAUSE it’s so narrowly defined in scope. At the most basic level, if you copy or distribute something that is not yours, then that’s copyright violation. Because it’s that simple, our government feels comfortable with creating laws that include punitive penalties (such as fines) to enforce copyright. A ruling, like this one, potentially widens the scope tremendously because it allows software developers to side-step narrowly defined rules with anything they choose to put in a User Agreement. In other words, they can enforce a contract (which can say anything) with the all the weight of the laws and fines that protect copyright (which is only supposed to protect something very specific).

To be very clear, breaking a contract is not illegal. Violating copyright is illegal. The concern is that Blizzard just won a case that made violating the User Agreement illegal not just a breach of contract.

Imagine that you contracted someone to build you a cement swimming pool. Sometime after you both signed the contractual agreement, the price of cement triples in price. In your contract, you had agreed that materials (like cement) would be billed to you separately. After finding out that cement is three times what you expected, you decide you don’t want to build the swimming pool. You break the contract and the pool contractor sues you for breach. In turn, the court sides with the contractor and awards him damages based on the expenses he paid out for the work already performed. That sounds fair, right? Now imagine that in addition to recovering those expenses that he also gets all his own lawyer fees covered and that you have to pay $150,000 in punitive penalties.

Imagine software developers had a blank check to have whatever terms and conditions they choose to put in a contract enforceable by copyright law. In this case, it just happens that the breach is related to botting. However, what if it were something insane like “must wear a yellow sweater on Sundays” or “must pay $50,000 if used longer than 6 months.” And while Blizzard may not ever add something like that into a EULA or TOS, the idea that some software company is not above reproach for such tactics is ludicrous.

The decision
Judge Campbell wrote: “As an initial matter, the Court concludes that limitations on the license granted by Blizzard may be found in both the EULA and the TOU. [..] These contracts must therefore be read together.” At first glance, this appears to make the entire User Agreement enforceable under copyright. However, he clarifies that “When the EULA and TOU are considered in their entirety, the Court concludes that section 4 of the TOU [titled ‘Limitations on Your Use of the Service’] establishes limitations on the scope of the license and section 5 [titled ‘Rules of Conduct’] sets rules of the game as independent contract terms.”

While I can’t say that I am entirely happy with this conclusion, I do breathe a sigh of relief that he recognizes a distinction between terms that are limiting the scope of the license protected by copyright versus terms that are simply contractual obligations. It appears to leave the issue a little more open-ended with the merit of each individual term being brought into question rather than the “blank check” that many of us feared.

However, the other broader issue of how this impacts Third Party Integrators is not quite as rosy. Judge Campbell continued, “Users of Glider clearly violate the prohibition in section 4 against the use of ‘bots’ or any third-party software. [..] When WoW users employ Glider, therefore, they act outside the scope of the license [..] Copying the game client software to RAM while engaged in this unauthorized activity constitutes copyright infringement.”

In other words, if the license agreement says that another program can’t interfere with a program loaded into memory – it’s a copyright infringement. When we are talking about Bots, most of us don’t want that type of thing to exist. But imagine if Windows had a section in the EULA that said only “Microsoft Certified” software programs are authorized to use the operating system. By Campbell’s interpretation, these types of limitations in scope are enforceable by COPYRIGHT law.

The reality is that such an interpretation simply stifles innovation. Third party integrators exist because the first party missed a niche or idea when they released a product. If the first party can simply come along and squash the third-party when they decide to compete, what is the incentive for third parties to make anything? The person who ultimately suffers is not the first party (or even the third party), but the end user customer who loses out on the innovation that is never created for fear of copyright infringement.

The whole “copy in RAM” idea is so completely asinine and beyond logic to me that I can’t believe it even enters into the discussion. It is my opinion that no such copy ever really exists because any use of the product implies such a copy must exist. It’s like arguing that you don’t have the right to listen to the copy of the music that plays between your ears and your brain. Loading a piece of software into memory is not making a copy because that’s the only way it possibly has any use or value to anyone.

Update: If you are interested in a more professional opinion on the decision, a copyright lawyer for Google wieghed in on the subject: “The court's holding on the copyright claims [permit] a chilling extension of control by copyright owners of software over copies of programs they have sold. [..]God help us if law is being reduced to such subjective, non-statutory grounds.”