Ownership Or License: The Difference Matters

from the quantum-bullshit dept

Those who rely on copyright like to do a neat little trick at times. When it's convenient, they like to claim that what they're offering is no different than a physical good. In such situations, if you make a copy, they claim that you "stole" it, and that it's "no different" that walking into a store and taking something off the shelf without paying for it. Yet, at other times, if you point out the sorts of restrictions that would lead to -- such as no control over the product post-sale -- suddenly they change their tune. You didn't buy the product, you merely "licensed" it, and thus they could post sale restrictions on things. If you buy a chair, and then build a replica yourself, that's perfectly legal. But copyright holders claim that's not the case when it comes to products covered by copyright -- because they insist that it's "licensed" not "owned."

Luckily, the courts have long pushed back on this attempt by copyright holders to extend copyright's power beyond what happens with physical goods. That's why, for example, we have a right to first sale, allowing you to resell a book. The copyright holder cannot claim that you only "licensed" the book, rather than bought it, so you are, in fact, allowed to resell it. But the law isn't entirely clear on all aspects of this, and software "licensing" is one key area where there are some problems.

A few years back, Blizzard sued the maker of a bot, the Glider bot by MDY, claiming that the software violated its copyright. Now, even many who are against abuses of copyright, emotionally started to side with Blizzard here, due to what the bot allowed: it effectively allowed cheating, by automating many repetitive tasks, to let users "level up" more quickly. But, if you get past that element, the case has important implications for copyright law, and whether or not the software you buy is really purchased... or merely licensed.

The district court ruling was incredibly problematic. Nothing the guy actually did with the bot software appears to violate copyright law. Basically, the court just decided that it didn't like what the guy did, and thus it used copyright law to shut him down, though it used rather tortured reasoning. This sets an incredibly bad precedent and seems entirely at odds with the purpose of copyright law itself.

The case is now being appealed, and Public Knowledge has filed an amicus brief while the EFF explains what's at stake:

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

Hopefully, the Appeals Court recognizes this. Copyright owners shouldn't be able to play a quantum game of calling something "owned" when it suits them or "licensed" at other times when it suits them.

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Ruling In WoW Bot Case At Odds With Intention Of Copyright Law

from the very-troubling dept

When a judge ruled last summer that a World of Warcraft bot violated Blizzard's copyright, the ruling was already quite problematic in that it vastly expanded the scope of copyright law in terms of the power of an EULA to limit the activities of legitimate purchasers by use of copyright law. However, an additional ruling dealing with some of the other aspects in the case may be even worse. Tim Lee's writeup explains all the gory details, but just to highlight the key point: this ruling clearly goes well beyond the intention of copyright law and the DMCA specifically, in allowing a software company not to just limit the sale or copying of its program, but to limit how a legitimate copy is used outside of additional copying or selling.

Of course, as we saw when the original ruling was made, there are some in the tech community who are willing to ignore the implications of this just because they don't like what the bot software did (i.e., helping people effectively cheat in the game). However, you need to look beyond what the software did to what these rulings actually mean, and it's quite problematic, and could represent a significant expansion of how copyright law can be used to remove all sorts of rights from individuals. The fact that this particular piece of software was used for questionable purposes is not the issue. The issue is that it was a twisted reading of copyright law that was used to stop it. Blizzard had a variety of options -- mainly technological -- to combat such a bot. To use copyright law is a problem we should all be concerned about.

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Blizzard Seeks Injunction Against Open Sourcing Bot Software It Can't Defend Against

from the that-raises-just-a-few-questions... dept

We were more than a bit worried last month, when a judge ruled that some bot software of the game World of Warcraft somehow infringed on Blizzard's copyright. It involved a lot of really tortured logic to figure out how such software actually violates Blizzard's copyright. It certainly is true that such software may be annoying to other World of Warcraft players, but that doesn't mean it actually violates copyright. We're already seeing some of the potential unintended consequences of such a decision, as Slashdot alerts us that beyond just seeking an injunction against the software, Blizzard is specifically seeking an injunction against him revealing the code of his software, such as by open sourcing it. If the court agrees, this effectively gives Blizzard control over someone else's source code, just because a judge found it infringed on their copyright. That seems highly problematic and dangerous.

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Blizzard Bot Ruling Sets A Dangerous Precedent On Copyright

from the not-a-good-thing dept

Earlier this year, we wrote a couple times about how World of Warcraft maker Blizzard was suing a bot maker. In that case, Blizzard was claiming that the bot maker (which let users automate certain tasks to quickly rise up in experience level) was violating its copyrights first by getting around the copy protection on its own spybot (which tries to prevent such automation) and then by not obeying the terms of the license agreement. As we pointed out in May, if the court ruled in favor of Blizzard on the license agreement question, it would effectively ignore the right of first sale by letting any company simply announce that it wasn't selling its product, but licensing it -- and then create all sorts of rules well beyond what copyright allows.

Unfortunately, the judge has now sided with Blizzard in a summary judgment on this issue. The one bit of good news is that it rejected the DMCA part of the claim, saying that the bot maker did not violate the anti-circumvention clause. However, the rest of the ruling is quite troublesome. Basically, the court ruled that as long as a company selling you a product says it's only licensing you the product (even if every other aspect of the sale appears to be a sale), then it can set pretty much whatever rules it wants -- and if you violate them, charge you with violating copyright. This leads to some really tortured reasoning, because, as William Patry notes, nothing the guy did actually violates copyright. Instead, the court had to spend eight pages trying to piece together two separate parts of the license agreement to make a case that copyright was somehow violated.

This ruling flies in the face of other recent rulings that found that just because a company claims it's only licensing you a product, it doesn't mean that it's true. There was the Autodesk ruling, saying that a software sale is a software sale, and the used promo CD ruling that says record labels don't get to put extra copyright restrictions on promo CDs just because they write something across the cover. Unfortunately, the judge in this case decided otherwise. Not only does this result in bad policy (now anyone just needs to say they're licensing you something rather than selling it, and they can put additional restrictions beyond copyright on it, effectively dismantling copyright) but it's also a misreading of the law itself (despite what the court says). Hopefully, it will be overturned on appeal.

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Once Again Real World Laws Enter Virtual Worlds: Warcraft Bot Maker Sued

from the bots-have-rights-too... dept

This isn't the first time we've seen stories like this, but Blizzard, the makers of World of Warcraft are suing the maker of a Warcraft "bot" that allowed players to automate certain activities. If this sounds familiar, you might recall people freaking out over bots in Second Life as well. It all goes back to the same point that it's dangerous to move real-world laws into virtual worlds. Those real world laws are designed to matter due to scarcity and the physical constraints of the real world. However, the whole point of a virtual world is that you're not limited by those constraints -- and you are only limited by the constraints programmed into the world. If the creators of the world don't program in certain constraints, it makes little sense to force them on the world through a real-world legal process. Why not just program in those constraints? So, if such a bot is really a problem, program a way to stop it from working and kick the user out for violating terms of service. But to bring a real lawsuit (using copyright, no less) makes little sense here.

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