May 5th, 2008 by Benjamin Duranske
Digital rights advocacy group Public Knowledge (“PK”) recently filed an Amicus Curiae (“friend of the court”) brief regarding Blizzard’s copyright claim (.pdf) against MDY Industries, maker of the popular World of Warcarft bot “WoW Glider” (now “MMO Glider”). Although the brief ostensibly supports neither side and is filed “in the interests of preserving the balance between buyer and seller; reader and author,” the core of PK’s argument is that Blizzard’s copyright counterclaim is not justified.
Public Knowledge argues that while Blizzard may have a contract law claim (PK offers no opinion on that), “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.” The brief goes on:
Blizzard has options for addressing cheaters, including disabling their accounts and bringing actions for breach of contract. It may also have remedies against MDY based on tortious interference with contract or other non-copyright causes of action. However, in seeking to curb MDY’s allegedly perfidious behavior, Blizzard may not undo Congress’ work in establishing statutory rights for the rest of the WoW users or for digital consumers more generally.
For the background of this case, see VB’s complete coverage of MDY v. Blizzard. Very briefly, Glider is a program that users run along with World of Warcraft. It automates key tasks in World of Warcraft, making it possible to play the game essentially unattended. Glider users can thus both harvest resources and generate high level characters without actually playing. Blizzard claims that Glider violates Blizzard’s copyright in World of Warcraft when it copies the game into the computer’s memory as part of its loading sequence.
The Electronic Frontier Foundation weighed in this morning as well, with a blog post praising Public Knowledge’s move. From the EFF post:
Blizzard’s theory is wrong, because it confuses a copyright holder’s intellectual property rights in the software it develops with a buyer’s rights in the actual copy of the software. An owner of software has a right to copy it if that copy is essential to the customer’s use of the software. (See Section 117 of the Copyright Act.) This rule is a crucial part of the balance Congress crafted between the rights of the copyright holder to manage and benefit from its expressive work, and the rights of the public to innovate, recreate and otherwise use and build on that work.
Blizzard argues that players aren’t owners but merely software licensees, so section 117 doesn’t apply. But court after court has held that the question of whether a user is an owner for purposes of Section 117 depends the substance of the transaction, not just how one party wants to describe it. For example, if you buy the software, keep it on your own computer and don’t have to return it when you are done, you probably own it.
Public Knowledge is represented on the brief by Sherwin Siy and Jef Pearlman, as well as by Connie Mableson of Phoenix law firm Dodge Anderson.
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