A Blizzard of Licenses: All the Games you Played without Buying.

Posted By:  John-Philip J. Schroeder


World-Of-Warcraft-LogoIt is no surprise that Blizzard Entertainment wants you to play World of Warcraft (Wow).  What may be surprising is that the company does not want you to buy it.  No, this does not mean Blizzard wants you to play their game for free.  Rather, Blizzard wants you to pay to play the game — but you never get to own the game and you must play it how Blizzard thinks it should be played.  Blizzard’s position is based on the idea of licensing copyrighted material, and is not unique, nor new.  However, a fairly recent case shows how many peoples’ conceptions about their ownership rights to games they “bought” are at odds with how courts are applying copyright law to gaming and other software.

In MDY Indus., LLC v. Blizzard Entm’t, Inc., the Ninth Circuit found MDY Industries liable under 17 U.S.C. § 1201(a)(2) and affirmed the a permanent injunction against MDY to prevent future violations.  629 F.3d 928, 954 (9th Cir. 2010).  MDY sold a software program that automatically played the early levels of (WoW) for players.  626 F.3d at 935.  Blizzard asserted the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201 et seq., prohibited MDY from selling such “bots.”  Blizzard developed and implemented program to prevent its players who use unauthorized third-party software, including bots, from connecting to WoW’s servers.  629 F.3d at 936.  The Ninth Circuit held MDY liable for selling a product with the purpose of circumventing Blizzard’s bot-blocking technology.  Id. at 953-54.

In holding as they did, the Ninth Circuit confirmed WoW players are license holders and do not own the software.  Id. at 938.  The court noted, “that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”  Id. (internal quotation omitted).   Because WoW players do not own their copies of the software, when their computers copy the software into RAM, the players may infringe unless their usage is within the scope of Blizzard’s limited license.  Id. at 939.  Somewhat confusingly, however, only a violation of a “condition” in a Terms of Use (ToU) will amount to copyright infringement.  Id. at 941.

The Ninth Circuit distinguished “conditions” from “covenants” by saying a:

covenant is a contractual promise, and a condition is an event that must occur before a duty to perform a promise arises.  Id. at 939.  Conditions are linked to the exclusive rights under copyright and “to recover for copyright infringement based on breach of a license agreement, (1) the copying must exceed the scope of the defendant’s license and (2) the copyright owner’s complaint must be grounded in an exclusive right of copyright.”  Id. at 940.

The good news here is that most players are not liable for copyright infringement because using a bot violates a covenant rather than a condition.  The bad news is that the average player does not read the ToU and is even less likely to know whether he is violating a covenant, let alone a condition.  Perhaps even more troubling is that the Ninth Circuit found companies like Blizzard have a “distinct anti-circumvention right under § 1201(a) without an infringement nexus requirement,” because 17 U.S.C. § 1201(a)(2) prohibits trafficking in technology that circumvents a technological measure that “effectively controls access” to a copyrighted work.  629 F.3d at 942, 952.  This means, so long as Blizzard uses programs that control access based on an activity, it can regulate that activity.  Companies may now wield 17 U.S.C. § 1201(a) as a legal sword to ensure their products are only used how they want them to be used – all a company needs to do is put the proper technological safeguard in place.

Of course, a game filled with bots and cheats can be obnoxious to play.  It is easy to see that Blizzard has a valid interest in minimizing such “addons.”  (On the other hand, see this Penny-Arcade comic for a different view on Blizzard’s motivation.)  Similarly, many other companies have legitimate concerns in maintaining the integrity of other products.  However, we should ask ourselves if shoehorning these valid interests into copyright law is the correct path, or if doing so risks painting ourselves in a corner?  Companies are using copyright law to dictate what the general consumer does with “their” products to a level not seen before.  (Which “their?”  That is the entire question.)  Allowing companies to broadly limit how products are used by saying they are merely “licensing” rather than “selling” threatens to encroach upon widely held notions of ownership.  It may well reach the point where most people never get to “own” any of their software, let alone other goods.



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