VB has obtained Blizzard’s response (.pdf) to the amicus curaie (”friend of the court”) brief filed last month by Public Knowledge in the MDY v. Blizzard litigation. For the background of this suit, see VB’s complete coverage of MDY v. Blizzard.
Blizzard’s chief argument in this brief is that making a copy of software into RAM can be prohibited when software is licensed to users (rather than sold to them) under a 9th Circuit case, MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). Blizzard argues that although owners of software are allowed to load copies into RAM in order to use the software, it is not selling World of Warcraft software to users, but rather licensing that software, and that “MAI and its progeny accept at face value that where software is subject to a license, the right to copy that software is licensed, not owned, and software developers may restrict the right to copy their software into RAM the same way they may restrict the right to copy in any other manner.”
For its part, Public Knowledge argued (.pdf) that based on a number of cases drawn from somewhat disparate fact patterns, the court must consider “the totality of the circumstances surrounding the transaction, including the presence and terms of any license, the relationship of the parties, and other external factors which may indicate the presence or absence of a sale” in making this determination.
This is an important issue with implications that go well beyond this dispute. Although it has not put the issue in quite such stark terms, Public Knowledge is essentially seeking a ruling that says that the sale of consumer software is, in most circumstances, a sale, pretty much regardless of what the agreement that comes with the software says. If the court agrees in spite of MAI and its progeny (and the ruling survives certain appeal) then U.S. copyright law would protect, among other things, making copies of purchased software in RAM in order to use the software — no matter what the “license agreement” says. Resolving this issue in favor of Public Knowledge would call into question provisions in EULAs governing nearly every virtual world and multiuser online game, as well as EULAs for other software.
The court has not invited any further briefing, but this issue will likely be a big part of oral argument, scheduled for June 26.
Note: If any of VB’s Arizona law student or attorney readers would consider covering the argument June 26, I would very much like to run something. Drop me a note if you are in the Phoenix area, and could plan to attend and write a guest spot.
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