Defendants' acts have not only harmed Plaintiffs and Class members by subjecting their Private Information to hackers, they have harmed Plaintiffs and Class members by devaluing their video games -- purchased from Defendants under certain assurances of security -- by adding elements of risk to each and every act of playing said games.

Moreover, rather than shouldering the burden of adopting sufficient security measures to prevent these repeated hacks and to protect the Private Information of their customers, Defendants instead have informed their customers, after the point of sale, that they must purchase additional security products in order to ensure the sanctity of their Private Information. These additional, post-purchase costs for security products -- which Defendants assert are the only measures that may be taken to ensure something even approximating account security when playing their video games -- were not disclosed to Plaintiffs and Class members prior to the purchase of Defendants' products.

The suit’s claim that we didn’t properly notify players regarding the August 2012 security breach is not true. Not only did Blizzard act quickly to provide information to the public about the situation, we explained the actions we were taking and let players know how the incident affected them, including the fact that no names, credit card numbers, or other sensitive financial information was disclosed. You can read our letter to players and a comprehensive FAQ related to the situation on our website.

The suit also claims that the Battle.net Authenticator is required in order to maintain a minimal level of security on the player’s Battle.net account information that’s stored on Blizzard’s network systems. This claim is also completely untrue and apparently based on a misunderstanding of the Authenticator’s purpose. The Battle.net Authenticator is an optional tool that players can use to further protect their Battle.net accounts in the event that their login credentials are compromised outside of Blizzard’s network infrastructure. Available as a physical device or as a free app for iOS or Android devices, it offers players an added level of security against account-theft attempts that stem from sources such as phishing attacks, viruses packaged with seemingly harmless file downloads, and websites embedded with malicious code.

When a player attaches an Authenticator to his or her account, it means that logging in to Battle.net will require the use of a random code generated by the Authenticator in addition to the player’s login credentials. This helps our systems identify when it’s actually the player who is logging in and not someone who might have stolen the player’s credentials by means of one of the external theft measures mentioned above, or as a result of the player using the same account name and password on another website or service that was compromised. Considering that players are ultimately responsible for securing their own computers, and that the extra step required by the Authenticator is an added inconvenience during the log in process, we ultimately leave it up to the players to decide whether they want to add an Authenticator to their account. However, we always strongly encourage it, and we try to make it as easy as possible to do.

Many players have voiced strong approval for our security-related efforts. Blizzard deeply appreciates the outpouring of support it has received from its players related to the frivolous claims in this particular suit."

"I want you!!! ...to enjoy the Mists of Pandaria Persian-free."

Last week, a user claiming to be from Iran posted on an official World of Warcraft forum to report that the game was inaccessible. A Blizzard employee responded to the thread on Saturday, writing that "United States trade restrictions and economic sanction laws prohibit Blizzard from doing business with residents of certain nations, including Iran."

"This week, Blizzard tightened up its procedures to ensure compliance with these laws, and players connecting from the affected nations are restricted from access to Blizzard games and services," the employee said.

You can have your rials back when you pry them from our cold dead fingers...
Image source. CC BY 2.0

Potential purchasers must know before purchase what are the requirements for the software to be used. Whether a permanent Internet connection, obligatory registration to an Internet platform including the related access to a game, or downloading additional software: all these things are essential information that the user much receive before purchase.

Were we to hold otherwise, Blizzard -- or any software copyright holder -- could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player's abstention from the disfavored conduct. The rationale would be that because the conduct occurs while the player's computer is copying the software code into RAM in order for it to run, the violation is copyright infringement. This would allow software copyright owners far greater rights than Congress has generally conferred on copyright owners.

The critical point is that WoWGilder did not contributorily or vicariously lead to violating any rights granted under the Copyright Act. Unlike speed-up kits, there was no creation of an unauthorized derivative work, nor was a copy made even under the Ninth Circuit's misinterpretation of RAM copying in the MAI v. Peak case. How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. In so finding, the court declined to follow the recent Vernor opinion in the Western District of Washington, believing it had to follow other Ninth Circuit precedent. I agree with the Vernor court that the other precedent (MAI, Triad, Wall Data) do not hold that over the counter software is licensed, not sold. (WoW may be purchased online too, but I don't think this changes the analysis.). Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

When users of the Hacks download, install, and use the Hacks, they copy StarCraft II copyrighted content into their computer's RAM in excess of the scope of their limited license, as set forth in the EULA and ToU, and create derivative works of StarCraft II.

Played on it a long time ago when it was still known as WoWScape. It was the whole reason I actually started playing on retail, me and a good portion of my friends. Blizzard would have lost out on thousands of dollars from me and my friends if it wasn't for them.... I honestly wonder about how much did Scapegaming make blizzard compared to how much it cost them. Wouldn't be surprised if it did them more good than harm.

"The best approach from our perspective is to make sure that you've got a full-featured platform that people want to play on, where their friends are, where the community is," he added.

"That's a battle that we have a chance in. If you start talking about DRM and different technologies to try to manage it, it's really a losing battle for us, because the community is always so much larger, and the number of people out there that want to try to counteract that technology, whether it's because they want to pirate the game or just because it's a curiosity for them, is much larger than our development teams.

"We need our development teams focused on content and cool features, not anti-piracy technology."

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.

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.