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.

42 Comments | Leave a Comment..

Blizzard To Korean Video Game Sports Assocation: How Dare You Promote StarCraft Without Paying Us!

from the entitlement-culture dept

Once again, we get a story of entitlement culture, where a company gets pissed off that someone is promoting their products, without getting a direct cut (not realizing, of course, that they get payoffs in other ways). This one comes to us via Rob, who sends in the story about an ongoing battle in Korea over the broadcasting of professional StarCraft matches. StarCraft has been amazingly popular for quite a long time, and there are professional players in Korea. It's such a big deal that a ruling body called KeSPA was put together, and organized the broadcast of professional StarCraft games on two separate networks. This has, undoubtedly, driven massive sales of StarCraft for many years in Korea. However, with StarCraft II, Blizzard is upset that it doesn't get a cut of the TV revenue and is trying to route around KeSPA. Apparently, as the fight has escalated, KeSPA has asked the gov't for help, and apparently regulators are threatening to rule that StarCraft II is an "Adult" game, which would make it difficult to broadcast on TV in valuable time-slots. You shouldn't bite the hand that promotes you...

41 Comments | Leave a Comment..

Blizzard The Latest To Kill Features, Call It An Upgrade

from the yeah,-that-doesn't-work dept

A bunch of folks have been sending in variations on the news that Blizzard has killed off LAN support for StarCraft II. The Buzz Saw points out that Blizzard seems to be taking the same old tactic of claiming that this removal of a feature is for the benefit of users, noting that this is "the best option to ensure a quality multiplayer experience." However, the company also does admit that it was a "difficult decision" and that a larger part of the reason may have been to "safeguard against piracy."

Either way, this seems like a move that's designed to backfire badly. It's all about taking away value, rather than adding value (or a reason to buy). LAN parties using StarCraft were a huge part of the appeal of the game -- and even though there were many pirated versions out there, it's part of what drove more people to buy the legitimate version. One thing that we've seen over and over again is that any business that focuses on "safeguarding against piracy" isn't focusing enough on providing unique value to customers. It's amazing that it still needs to be explained in this day and age, but you succeed in business by providing more positive value to customers, not in taking it away just because it doesn't fit with your business model.

72 Comments | Leave a Comment..

Blizzard Gets Super Aggressive With Cease & Desist Letters

from the way-to-piss-off-fans... dept

Bradley writes in to alert us to the news that, in the last month or so, the lawyers over at Blizzard have been quite busy sending out an awful lot of cease-and-desist letters for pretty much anyone having anything to do with the game World of Warcraft. Among those hit with C&Ds are iPhone apps, web comics and others. The latest involves a popular fan site, called WarcraftPets.com that was apparently selling some things to support the site -- which is apparently a huge no-no to the lawyers at Blizzard (though, it's not clear why they went after some free iPhone apps as well). The whole thing doesn't make much sense. Why is it so problematic that a fan site that's helping to promote the game can't make a little profit for helping promote the game? And, yes, when it comes to trademark law, there is a duty to protect, but that's only in the cases of clear confusion. If there isn't likely to be any confusion, there shouldn't be an issue.

29 Comments | Leave a Comment..

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.

39 Comments | Leave a Comment..

Blizzard Adds Another Scarcity To Sell Around World Of Warcraft: 3D Figurines

from the it's-the-little-things dept

We're always looking for interesting examples of companies using infinite goods to sell scarcities, and George Johnston points us to one side business that Blizzard Entertainment seems to have gotten into to make more money from World of Warcraft. The company already gives out its basic software for free, but sells the (scarce) service of connecting to its game servers to play (even though there are "free" servers out there, many end up paying for the official one, because it's better, more stable, and has many more players). However, Johnston noticed that Blizzard has also done a deal with a 3D printing company (usually used for things like rapid prototyping) to allow game players to buy 3D models of their players. This is unlikely to ever become a really big business, but it highlights, yet again, that there are numerous different scarcities around any particular product -- and a good business is one that goes out and explores that wide variety of options to figure out what they can sell.

38 Comments | Leave a Comment..

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.

65 Comments | Leave a Comment..

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.

83 Comments | Leave a Comment..

Courts Should Reject Blizzard's Assault on the First Sale Doctrine

from the contract-or-copyright? dept

We've written before about the ongoing fight over the legal status of end-user license agreements. Many software companies have tried to claim that breaking an EULA is copyright infringement, which often carries harsher penalties and stronger remedies than mere breaches of contract. The courts have generally resisted these arguments, holding that a copyright holder cannot expand the scope of copyright simply by attaching a "license" to its products. The Electronic Frontier Foundation points to the latest skirmish in this debate: Blizzard has taken the position that using a piece of software called Glider to cheat in World of Warcraft is not only contrary to the game's license agreement but is copyright infringement as well. Indeed, on Blizzard's theory, any violation of the license agreement would constitute copyright infringement.

Public Knowledge has submitted a brief in the case pointing out the real problems the courts would cause if they accepted Blizzard's argument. For example, among the terms of the World of Warcraft license are rules about what you can name your in-game characters. Blizzard's theory would mean that if you choose a name that violates those rules (such as naming your character after a "popular culture figure, celebrity, or media personality"), you would not only get kicked out of the game, but you would be liable for copyright infringement too! This is plainly not how copyright is supposed to work, and PK rightly urges the court to reject Blizzard's over-reaching argument. Perhaps most troubling, accepting Blizzard's argument would mean that software vendors would have the power to dictate who may make software that interoperates with their products. Outside of the much-reviled DMCA, copyright law has never given software vendors this kind of control, and there's no good reason to start now.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

25 Comments | Leave a Comment..

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.

34 Comments | Leave a Comment..

Does ActiBlizsion Make Sense? Can A Merged Activision And Blizzard Really Work?

from the the-studio-model-at-work dept

The big news in the tech world this weekend, of course, is the slightly complicated merger between video game firms Blizzard and Activision to form the not-particularly-creatively-named Activision Blizzard. You can read the link above to figure out the complicated parts, including Vivendi's role, as well as the various amounts of cash going into the deal from both sides. As for the rationale behind the deal, it's one of those deals that seems to make sense on paper. It makes the combined company somewhere around the size of EA, the major player in the space. It also aligns the complementary strong points of each firm. Activision is big in console games like Guitar Hero while Blizzard is big in multi-player online games like World of Warcraft. Blizzard also has a strong presence in Asia. So, on paper, it sounds like a great deal. The tricky part will be actually making it work. Even with such clear complementary successes, it's not always so easy to merge two large players like this with different approaches to the market. What almost always happens when two large companies merge is that one side ends up taking over and the other group fights for a while and then leaves -- taking much of the reason for the merger away. Even more complicated in this case is that both companies are pretty dependent on coming up with new "big hits" on a regular basis to keep bringing in the revenue. EA's success (whether on purpose or not) has largely been driven by the ability to release "franchise" games that people will buy the next version of every year -- particularly in the sports arena. If the merger makes the company take its eye off the ball, leading to a weak set of products, it could be quite damaging. Maybe the companies will pull it off. Maybe they can figure out a way to actually build on their separate strengths without fighting themselves -- but it's a big bet to take.

29 Comments | Leave a Comment..

Researchers Want To Test How The Plague Would Spread In World Of Warcraft

from the all-for-the-sake-of-research dept

There are all sorts of questions about how the government would respond in the event of a serious outbreak of a dangerous virus or a plague. Certainly, various gov't agencies have plans and procedures in place, but it's difficult to account for all the different possibilities and how something might spread. However, some researchers have an idea for how they might get a better idea and perhaps get some training in at the same time: use online video games like "World of Warcraft" and see what happens when some players are infected with a contagious plague. The researchers note that "World of Warcraft" had its own plague a few years ago, which gave them the original idea to approach Blizzard to work out some sort of deal to do this kind of research. They hope that by seeing how real people react, with virtual characters whom they've invested a lot of time in, they'll get a better idea of how people react to certain situations such as quarantines. Whether or not it actually will work, it certainly seems like a creative solution to get a better understanding of some potential scenarios, prior to an actual emergency situation.

57 Comments | Leave a Comment..