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.
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.