Trio Of Important First Sale Cases All Hit Appeals Court In Early June

from the it's-first-sale-month dept

Zusha Elinson has noted that a trio of important cases concerning the "first sale doctrine" in copyright law will all be heard on appeal in the (at times wacky) 9th Circuit in early June. We've written about all three cases here before. There's UMG v. Augusto, which questions whether or not it's legal to resell "promo CDs" that record labels stamp "not for resale." In that case, the judge ruled that reselling was perfectly fine, and preventing such sales was a violation of the first sale doctrine (and would, effectively, give record labels a way of creating perpetual and all-controlling copyright, if the decision went the other way). Then there's Autodesk v. Vernor, similarly involving the right to resell software. Again, the district court ruled that this was allowed, noting that software is really sold, not (as Autodesk claimed) just licensed.

The third case is the troubling one. MDY v. Blizzard is the one case that went the other way, in a ruling that left many copyright experts scratching their heads, noting that it seemed to go against everything that the first sale doctrine stood for -- and that nothing the guy did (he made a bot that worked in World of Warcraft) actually violated copyright law.

Hopefully, the appeals court upholds the first two cases and reverses the third... but these days, you never know how courts are going to rule on these sorts of issues. And, the 9th Circuit is often notoriously... weird in some of its rulings. Either way, these are three cases worth watching, as they could have a pretty big impact on the question of whether or not you have the right to do what you want with products you bought.


Reader Comments (rss)

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  1.  
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    Big_Mike (profile), May 12th, 2010 @ 5:51am

    The first two cases I agree with but on the third I have a different opinion. Look at World of Warcraft as an amusement park. The processing that is done, is done on servers they own and not on the computer owned by the player. The software on the computer is merely the "Ticket" to get into the Park. You can't just walk into an amusement park and setup shop to make money and if you try and get caught you are going to get kicked out. They have rules that you have to follow.

    That being said, how would someone be treated in the real world if what they offered was "Training" on how to successfully set up shop in an amusement park to make money? I ask that because I don't know. Could the owners of the amusement park sue the Trainer? If so, on what grounds? Answer me this and I can decide how I feel about it.

     

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    Bengie, May 12th, 2010 @ 6:21am

    3rd not the same

    I agree with Big_Mike. The first two were based on something the customer actually had. One was a physical CD and the other was a user licenses.

    In the case of World of Warcraft, you pay for a * subscription*. Blizzard has full rights to their own servers and can dictate how you connect and what you do. They also own anything that resides on their servers and can do whatever they want whenever they want. If you don't like it, don't pay for the service. BTW, you can keep the WoW client but good bunch that's gonna do w/o their service.

     

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    Chronno S. Trigger (profile), May 12th, 2010 @ 6:38am

    Re:

    To use your amusement park analogy, it's like me making a dummy I carry around with me to get a car on the roller coaster all to myself. The seat is being payed for and I'm not braking any laws, definitely not copyright, but it's against the park rules. They can kick me out of the park, but they can't call the cops.

    It's not copyright infringement to make a bot in WOW, but it is against the server rules and Blizzard can, and probably did, cancel the account.

     

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    Anonymous Coward, May 12th, 2010 @ 6:39am

    "but these days, you never know how courts are going to rule on these sorts of issues. And, the 9th Circuit is often notoriously... weird in some of its rulings."

    When if ever courts were predictable?

    Anyways I disagree with the two fellows before me.

    The guy has a right to write a bot for the game that could be used in other servers not belonging to the game publisher, Blizzard has its servers but people could set up their own to play that game so then that little piece of software would be illegal?

    People bought the game, would they not be able to setup their own servers and put other things in it?

     

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  5.  
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    Comboman (profile), May 12th, 2010 @ 6:40am

    Re: 3rd not the same

    Blizzard has full rights to their own servers and can dictate how you connect and what you do. They also own anything that resides on their servers and can do whatever they want whenever they want.

    While that's true, that would only give them the right to kick off people who are using the bot. It should not give them the right to sue the person who created the bot. It's the equivalent of arresting gun manufacturers for murders committed by others with their guns.

     

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    Nick Coghlan (profile), May 12th, 2010 @ 6:47am

    The 3rd case is not the same, but should still be reversed on appeal

    I agree the third situation is somewhat different from the first two, but I also believe the decision in that case should still be reversed.

    The problem is that Blizzard can ban bots in their Terms of Service and cancel people's account if they catch them using a bot. That's all fine and well within Blizzard's rights (and as a WoW player, hooray for them doing it - bots can seriously mess up server economies).

    What Blizzard have done in this third case, however, is to go after the *maker* of one of the bot programs and attempt to use copyright law to get the bot program *itself* declared illegal.

    That's an abuse of copyright law, and the courts shouldn't allow it. Sure, the bot maker is creating a tool that has the sole purpose of helping people to violate Blizzard's Terms of Service in WoW, but that isn't illegal as things currently stand. If Blizzard would like it to be illegal, then they should be lobbying the legislative branch rather than persuading the judicial branch to get creative in interpreting the law.

     

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    Designerfx (profile), May 12th, 2010 @ 6:52am

    Re: 3rd not the same

    that's not the issue.

    Blizzard controls what runs on their servers, not what runs on your pc. Also, what copyright is exactly "infringed" by running the wowglider while playing wow? none.

    They absolutely cannot dictate what you do, or how you connect. They have tools to change whatever they want, but it doesn't mean they can stop you from doing it. Where do you come up with that? They just provide you a client to authenticate with their servers, and the ability to disconnect/ban you if you chose poorly enough to use their services in the first place.

    Online game w/online subscription = DRM in in a nutshell. Think you can take it with you without paying ongoing? Think you can take it with you for anything outside what they choose? Think you can sell your chars to someone else, etc?

     

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    Designerfx (profile), May 12th, 2010 @ 6:55am

    Re:

    they can absolutely "kick you out". That also has absolutely nothing to do with the lawsuit, either.

    The lawsuit is for copyright infringement. This means that they are saying that you're breaking copyright on something nebulous, by creating a bot that will play wow for you.

    What copyright are they exactly breaking? What are they copying without permission?

    Blizzard tried to argue that you're "Copying the client software", but obviously wowglider doesn't even have to do that.

    If I made a website, and you made a way to do something to the website that I didn't intend for, how or why would I be able to sue you for copyright? Sure, there are other things you can be sued for depending on what you do, but I fail to see anything showing that you understand the case or what happened at all.

     

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    BearGriz72 (profile), May 12th, 2010 @ 7:33am

    Re: The 3rd case is not the same, but should still be reversed on appeal

    As a WoW player myself, I wholeheartedly agree with this entire comment!

     

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    Bengie, May 12th, 2010 @ 7:52am

    Whoops

    I some how forgot about how the act of the making the bot itself isn't illegal, but using it on the servers can warrant a civil action.

    Anyway, ma'b Blizzard would have been more in the right if they sued them in order to force the programmers to remove the ability to connect to Blizzard's official servers. It should be easy enough for the programmers to be able to restrict connections to Blizzard's servers which reside in AT&T hosted sites.

     

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    jjmsan (profile), May 12th, 2010 @ 8:04am

    Civil Action

    As has been pointed out in other articles, copyright violation is a civil matter so in the third case what he is doing is not illegal. It was ruled as violating the WOW copyright and so the person can be enjoined form making the program available and liable for damages.

     

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    Willton, May 12th, 2010 @ 9:12am

    Blizzard case is more properly a tortious interference case

    The Blizzard case is more properly brought against the wowglider developer as a tortious interference case. Essentially, MDY was creating a program that interfered with Blizzard's business model and the enjoyment of its services by its clients (i.e., the players). I would think that such a case would stand up in court more properly. The only problem would be how to determine damages.

     

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    Mike Masnick (profile), May 12th, 2010 @ 10:19am

    Re:

    The first two cases I agree with but on the third I have a different opinion. Look at World of Warcraft as an amusement park. The processing that is done, is done on servers they own and not on the computer owned by the player. The software on the computer is merely the "Ticket" to get into the Park. You can't just walk into an amusement park and setup shop to make money and if you try and get caught you are going to get kicked out. They have rules that you have to follow.

    Indeed. And if WoW just kicked out people using the bot, that would be perfectly reasonable under their terms of service.

    But this is about something very different. This is about suing the guy who made the bot for *copyright infringement*. There are two issues with this. One is suing the guy who made the software, not the users. The second is the claim that it's somehow copyright infringement.

    As much as people hate bots, there are ways to deal with them -- and this is not the appropriate one.

    That being said, how would someone be treated in the real world if what they offered was "Training" on how to successfully set up shop in an amusement park to make money? I ask that because I don't know. Could the owners of the amusement park sue the Trainer? If so, on what grounds? Answer me this and I can decide how I feel about it.

    It does depend on a lot of different factors, but I think there might not be much of a case. If the guy used the amusement park's trademarks... perhaps there would be a weak trademark case to get him to stop using the trademark, but if he was using it to accurately describe what he was offering...

     

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  14.  
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    Mike Masnick (profile), May 12th, 2010 @ 10:20am

    Re: 3rd not the same

    In the case of World of Warcraft, you pay for a * subscription*. Blizzard has full rights to their own servers and can dictate how you connect and what you do. They also own anything that resides on their servers and can do whatever they want whenever they want. If you don't like it, don't pay for the service.

    Indeed. And I have no problem with them kicking bot users off their system.

    But that's not what this is about. This is suing the guy who made the system for copyright infringement. It's suing the wrong guy for the wrong thing.

     

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  15.  
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    Anonymous Coward, May 12th, 2010 @ 2:14pm

    Re: 3rd not the same

    In the case of 3ds Max, you pay for a *subscription*. Discreet has full rights to their own software and can dictate how you connect and what you do. They also own anything that resides on their servers and can do whatever they want whenever they want. If you don't like it, don't pay for the software.

    See how easy that flips around?

     

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  16.  
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    Willton, May 12th, 2010 @ 5:54pm

    Re: Re: 3rd not the same

    But that's not what this is about. This is suing the guy who made the system for copyright infringement. It's suing the wrong guy for the wrong thing.

    Disagree: it's the right guy, but the wrong cause of action. Blizzard is well within its rights to go after the entity that is interfering with the business it conducts with its customers (i.e., the players). Blizzard just needs to choose the correct cause of action (i.e., tortious interference).

    If you think it's fair to go after the bot users, then why is it not okay to go after the maker of the bot? When the only use the bot has results in a breach of the TOS, why should the bot maker be insulated from liability?

     

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    YourSoftwareDeveloper, Sep 10th, 2010 @ 10:36pm

    In detail

    A lot of people especially the WOW players see this as a total "Blizzard vs the Botters" argument.

    But it goes much deeper then that.
    What is at stake are your basic computer and electronic freedoms.
    Do you understand what they are saying?
    They are saying if you just load a copy of a program in to RAM then you are breaking the law of copyrights.
    And you have to understand out legal system works.
    These things set a legal precedent for any other related thing.

    Then next it's Microsoft or someone else telling you what you can and can't run on your computer.
    That's just an example, it can get much worse.

    Don't you think that you paid for your computer, your paid for your software, you do what you want with it?
    As long as you are not doing obviously illegal things like violating Chapter 18 (network hacking), etc.

    Furthermore Blizzard, and other particular corporate developers have this big winded EULA, etc., that says hey what ever you buy, what ever they do, etc. They are not responsible for it.
    In other words buy or software and pay $15 a month but we owe you nothing.
    Yet we own/control what you can do with your own money you just spent on us.
    Where is your representation and rights as a consumer?

    And these same people that are saying "Yeah Blizzard" . Do you actually stop and read the all the WOW "legal" agreements first before you make your opinions?

    Imagine if Ford motors (no offense, just an example) did this back in the early 1920.
    And basically controlled all sides of their cars and what ever they could of the auto industry.
    To this day you would have to buy everything Ford.
    Including tires, you would have to buy only Ford Gas, etc.
    What would happen to all of the facets of the auto industry today?
    All of the third party companies, the jobs of thousands of mechanics, etc., etc.

    Blizzard (not to mention the MPAA, RIAA, Sony, etc.) want this kind of control of people now.

    At the heart of it is the corruption and greed that is all through our government now.
    Look what Sony, and these others are doing with ACTA to totally circumvent due process the right of America to vote.
    Our laws are being sold wholesale to the highest bidder.

    If they can't get some bill passed in a upfront in an honest way, they will just pay corrupt law and lobbyist firms. In-turn who pay off cheap some corrupt congressmen, and, or, Senators to add their wanted law(s) as a rider to a completely unrelated Bill.

    Furthermore Blizzard's lawyers should be disbarred for their "legal" extortion attempts.
    They file threats, phony DMCA take-downs, etc., for things they know that is perfectly legal (like simple screen shots).

    Also does this stop botting in WOW or any other MORPG et al?
    Most certainly not. There many people that use private bots, not to mention many commercial bots that are available from companies off shore.

    All this legislation just kills more and more industry here in America.
    This means less small businesses, less, jobs, less GDP, etc.; the end result less money flowing in our own country.
    Then people wonder how our economy is so bad, why they have no job, etc.
    How places like San Jose, California, etc., that were once bustling with tech businesses become a virtual Ghost town.
    The companies moving to other states, or worse off shore.

    For the corporate mentality, and the corrupt paid off creatons in our government (virtually acts of treason) though it's committing such suicide, it doesn't care.
    It's all about how much profit can I MAKE NOW, TODAY; screw your well being, sell your own mother, screw the country, screw our future, the future of not only your own grandchildren but your grandchildren's children.

    Don't support greedy corporations that do anything for the dollar.
    Maybe not everyone at Blizzard, but certainly the bean counters doing all this litigation.

    And if you don't want to loose what ever freedoms, for what ever the Constitution stands for you have to be informed, speak up, vote, and fight, fight, fight!

     

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