Blown To Bits

Running software = Copyright infringement?

Sunday, May 18th, 2008 by Hal Abelson

If you purchase some software, do you have the right to run that software on your computer? Blizzard Entertainment, maker of the popular multiplayer game World of Warcraft, is asking an Arizona judge to rule that you don’t have that right. As Blizzard would have it, running a program ‚Äì even software you’ve bought and paid for ‚Äì is copyright infringement unless it’s done with explicit permission from the software publisher. This legal theory rests on the claim that when the computer moves program code from disk to memory in order to run the program, the bits are being copied, hence the liability for copyright infringement. This is the same interpretation of ‚Äúcopying‚Äù that raised its head in the early 1990’s. As described in Blown to Bits, it would lead to the conclusion that almost any use of a computer is potential copyright infringement if done without explicit permission from the software publisher.

In the Arizona case, Blizzard is suing MDY, Inc., which makes a program called Glider. Glider is a bot that that automates some of the activities in playing World of Warcraft, such as fighting. Fire up Glider and you have a large unfair advantage in your game playing that lets you skip ahead to advanced levels of play. Blizzard’s attitude towards Glider is much the same as the International Olympic Committee’s attitude toward steroids.

Using Glider or other bots is against the rules in WoW and violates the user license agreement for the client software. Accordingly, one of Blizzard’s claims is that MDY is encouraging players to break the license and should therefore be liable for so-called ‚Äútortious interference‚Äù with contracts.

Contract violation may be all well and good, but Blizzard goes further, and claims that WoW players who use bots or break other game rules are infringing copyright when they run the WoW client program on their computers. These players may have bought the program, but in Blizzard’s theory, they don’t actually own the copy of the program they paid for: they’ve merely licensed it for certain use. Any other use (including breaking the WoW rules) is unauthorized. And so, the theory goes, copying the program from disk to memory is unauthorized copying, hence infringement; and MDY is therefore guilty of secondary infringement.

What difference does it make whether this is contract violation or copyright infringement? Plenty, as readers of Blown to Bits know. The penalty for copyright infringement includes mandatory statutory damages of at least $750 per violation. That is, a judge must award at least this amount if infringement is proved. MDY, which has sold over 100,000 copies of Glider, would be facing statutory damagers of at least $75 million.

MDY’s fortunes aside, the real losers of a judgment in Blizzard’s favor would be all all of us who use sofware.¬† We’d find that any violation of software license conditions would be copyright infringement with the consequence risk of liability for mandatory statutory damages.¬† This would be the case even though nothing is being copied ‚Äì unless you count the copying of the program into memory to run it. For example, it’s against the rules in WoW to use bots, and it’s also against the rules to give your player a name that includes a title: name your WoW character ‚ÄúKing Alfred‚Äù and bingo ‚Äì copyright infringement and a $750 fine.

In March, both Blizzard and MDY filed motions for summary judgment. Let’s hope the judge throws Blizzard’s copyright claim on the legal junkheap. The world of bits and the world of copyright law have an uneasy enough relationship without resurrecting this absurd legal theory.

Comments are closed.