Tobold's Blog
Saturday, June 21, 2008
Blizzard not doing so well against MDY

If you think that the subject area of my blog is narrow, you should see Virtually Blind, a blog that only discussed the legal aspects of virtual worlds. Sid67 alerted me to their latest news about the Blizzard vs. MDY (WoW Glider) lawsuit. Apparently Public Knowledge, a digital rights advocacy group, intervened as "friend of the court", blasting Blizzard's claim that modifying a copy of WoW in the RAM is a copyright infringement. And the judge ordered Blizzard to respond, which means he doesn't simply accept Blizzard's claim as is.

This is interesting, because it not only is important for Blizzard's lawsuit, but for the rights of modders and writers of addons everywhere. If modifying the copy in the RAM is a copyright infringement, game copies can go after creators of mods they don't like for some reason. Hey, they could even sue you if you use some cheat program to modify a running program. So while I'm not a fan of bot software, I think it would be good if a court set rules on how far game companies can restrict what players can do with their games.
My understanding is that Blizzard isn't claiming that modifying the copy in RAM is a copyright infringement.

They are claiming instead that by modifying the copy in RAM you are now in violation of the terms of the license you have for the software. At that point you no longer have permission to have a copy of their software, and thus the copy you have is an infringement of their copyright.

It's a sneaky and underhanded argument, I'll say that much.
While I'm completely against any sort of cheats, exploits and bots in these games, in fact I'd say much moreso than most players... Blizzard doesn't have much ground to stand on in this case.

Even in the case of infringement on their EULA, at most I think they should retain the right to ban offending accounts. The lawsuit is pretty dubious and a mistake for them when / if they lose.

They would have been much smarter to work on the identity-theft angle of most gold farmer accounts, where the bots see the most usage. With the right pushes and prods they could probably get the FBI fired up on that front. But then again, their own self-policing snooping-on-your-PC software might come too much into the light of day.

It's a sticky subject either way.
Here's my take on it:

If Blizzard wants to NOT allow certain MODS, and to allow others, that's fine. It's their game. If a player does not like it, there are what, 4 billion other MMO's out there?

Now, to allow Blizzard to sue a mod-maker is silly..but of course there are limits to how much a player should be allowed to alter.

We'll see. I think it's safe to say that Blizzard loves their modding community. They are not suddenly going to start taking away the ability to mod.
Of course, there are people that will take advantage of WoW's openess for modding. Those are the people to blame when we cannot make mods anymore.
The legal brief by Public Knowledge can be found here. Public Knowledge argued that it's implied that the users are allowed to have a copy loaded into memory when they purchase the game under existing law. Circumventing a technical measure to use a copy they already licensed is not a violation of any copyright law.

It's critical for Blizzard to make the distinction that it is a copyright violation in order to use the protections provided in the DMCA. As a third party, MDY is not subject to the terms of the license between Blizzard and their subscribers. Without the copyright infringement, the burden is on Blizzard to prove malicious intent to interfere with the contract. Making a piece of software for profit that might harm someone else indirectly is not malicious.

As PK writes in an article on their website, "This is a case pitting distasteful gaming behavior against an unsavory over-assertion of copyrights. [...] Under Blizzard’s theory, a copyright owner could not only contractually impose the most onerous restrictions on its customers—restrictions that undermine rights guaranteed by copyright and First Amendment law—but could also enforce those conditions with the threat of copyright law’s high statutory damages. Blizzard’s attempt to use contract to alter and displace those aspects of copyright law it does not like, while using copyright penalties to construe and enforce the terms of that alteration, is untenable, and the Court should not endorse it."
Soooooooooooo... how about those 1200g bags?
They are claiming instead that by modifying the copy in RAM you are now in violation of the terms of the license you have for the software. At that point you no longer have permission to have a copy of their software, and thus the copy you have is an infringement of their copyright.

It's not the main point of their argument, but PK does address this in the brief by saying that Blizzard doesn't have the right to repossess set such provisions or revoke the license. Here are some snippets:

In Krause, the court investigated whether or not the seller reserved the right to repossess copies used by the buyer. Absent such a provision, and since the buyer had the right to continue to possess the programs after the relationship
was terminated, the court found that the transaction was a sale.
There is no agreement between Blizzard and the user prior to or at the purchase of the client software that limits the time the user may possess the copy.
This unlimited, permanent possession is underscored by the fact that Blizzard does not repossess copies of the game after a termination of the license agreement.
All seriousness aside, it is an important case for modders and add-on developers. If you look at this lawsuit and this game, there is one very interesting product to consider: Xfire.

Xfire integrates with the game to read data out, such as the player's continent. It is a third-party application outside of WoW, but they have Blizzard's approval to be used with the game.

If the court finds that violating any term of the EULA or ToU gives rise to copyright infringement, what happens when someone wants to compete with Xfire and offer a similar service?

No blessing from Blizzard = secondary copyright infringement. The potential "Yfire" would be against the law to distribute. Not against the rules of the game, but against the law.

Worse yet, consider Xfire themselves. Blizzard could, with the stroke of a pen, turn all of their customers into copyright infringers, as well as turn Xfire into secondary copyright infringers just like MDY.

Does that seem fair?
Whoever wins, we lose. I really don't think Blizzard should win here, as it has all sorts of nasty connotations that really are detrimental to the industry as a whole, and adds something ugly into copyright law precedent.

But jesus, MDY shouldn't be doing what they are doing, and if they win they are going to give a WHOLE lot of crap that ends up supposedly justifying what they do, which is wrong.

I don't like this case. I don't like it one bit.
The simple fact is not that what glider does is distastful. Its that if glider loses then every other modder out there is guilty to varying degrees of violating the DMCA unless they get permission from the game company first.
The real problem I see is they want to have their cake and eat it too. They want the modders that make the mods they like to keep doing it but they want to slap down the people that make the mods and programs they don't like. They have all the power they need in the EULA to do that with in-game bans but they are risking that to try and get the courts to do thier job for them. I don't think blizzard or any game company will be happy with the results 20 years from now if they actually win thier argument in court. They'll actually be punishing the smart, motivated , techy gamer that comes up with the stuff they might want to put in thier games. It'll just once again reduce the amount of talent and innovation in the industry
They have all the power they need in the EULA to do that with in-game bans but they are risking that to try and get the courts to do thier job for them.

Violating the EULA is a contract dispute, not a copyright dispute. The strict language and enforcement of copyright law is intended to keep intellectual property from unauthorized distribution. Copyright law is not intended to enforce a contract dispute between two parties. Copyright laws are purposefully much stronger than contract or tort laws because the protection they provide is so narrowly defined. However, a contract, like a EULA is not narrow and can have any language it wants. This whole “they became unauthorized to make a copy into RAM when they violated the EULA” argument from Blizzard is an ugly thing for the software industry (not just gaming).
I think we just agreed with each other sid. No sane company wants an arbitrary court enforcing thier contracts. And I think if they win thier lawsuit that's the direction the law will go. And a lot of talented people will quit modding games and creatign add-ons. And this will effectively be a big chunk of free innovative talent lost to the industry as a whole.

As I said
I don't think blizzard or any game company will be happy with the results 20 years from now if they actually win thier argument in court.
I think we both agree that it’s a bad thing, I’m just nitpicking because I think you misinterpret the extent to which it’s a bad thing. Contracts have very loose rules that are largely defined by the contract itself. By contrast, copyright is very narrowly defined to mean very specific things. Because the scope is narrow, strong penalties and enforcement protect copyright by law and make the violation illegal.

Simply violating a EULA or contract is not illegal, but may carry steep consequences as defined in the contract (including termination of an account). BUT -- Violating copyright laws is illegal and some of the enforcement laws are punitive (fines and such).

Blizzard wants to enforce it’s EULA contract with law that makes it illegal to break the EULA and use the product. That’s simply wrong. It’s a huge concern that a software company can set a precedent to use narrowly defined laws to enforce broad contracts. As an extreme (and ludicrous) example, they could put “may not wear a yellow hat while playing” in the EULA and use copyright law to make it illegal for you to wear a yellow hat. The net effect is that this is a great thing if you are Blizzard and a horrible thing for everyone else.
I don't know, but with Blizz messing with the bots, it's hard to make a decent Alt these days. There isn't anything on the AH, especially horde side, Wool Cloth for 13g.

I think it's the bots that kept prices down, I say make more as far as I'm concerned.

Its not bots. I've got an alt on hellscream. I can sell mats for crafting for insane amounts of money. Because no one wants to grind them anymore. I get to set the price. I've sold wool for 20g a stack. And most people who are leveling have 70's if they get short cash they log on do a few dailies and mail themselves money.

I've been leveling a druid on Cairne. Mats are at prices that remind me of early wow. But its a new server and no transfers on till august. So few 70's means no inflation from dailies.

Blizzards dailies did hurt gold sellers but they just replaced the source of inflation. In fact they made the inflation worse. I'm sure going after bots is part of it. But most of it IMHO is that people who'e leveled once would rather pay than grind the mats again for an alt.

The problem with this line of reasoning is it will stifle innovation. Perhaps I'm wrong. I tend to be a glass is half empty kind of guy. But I see less and less innovation as companies get bigger and bigger. They all seem to have this psychotic desire to run off all the avid gamers who progam all the mods they keep incorporating as features.
Why would you kill that kind of a free thinking resource?

But its like piracy. they are spitting in the wind. No matter how much they spend fighting this stuff they'll never make headway on it. Because there are million's of people actively trying to out think each developer that comes up with a way to stop them. Statistics alone dooms the effort from the start.
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