Yet Again, Blizzard Looks To Twist Copyright Law To Use It To Go After Bot Makers It Considers Cheaters

from the that's-NOT-copyright-infringement dept

We've been here before a few times. Back in 2008, video game giant Blizzard initially won a very dangerous ruling against a World of Warcraft bot maker, saying that if (as most software companies do) the End User License Agreement (EULA) says that you've only licensed the product, rather than bought it, then any violation of the EULA can be a violation of copyright law. Copyright expert William Patry, at the time, pointed out how insane such a ruling was:
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.
Thankfully, the Ninth Circuit mostly walked back this ruling (though with a bunch of other problems...), noting (as Patry did in discussing the earlier ruling) that nothing was done that actually violated copyright law. It might violate a contract, but not copyright. This ruling, however, has not stopped Blizzard from continuing to go after bot makers with copyright claims. It went after some Starcraft II cheat creators in 2010. And just last year it went after a few more Starcraft II cheat creators, using the same twisted copyright theory.

And now, as TorrentFreak first pointed out, it's done so yet again -- this time filing a lawsuit against James Enright, who had built up a series of gaming bots for use in World of Warcraft, Diablo and Heroes. And, once again, Blizzard claims that it's a copyright violation, again arguing that violating the EULA is a form of copyright infringement.
Defendants have infringed, and are continuing to infringe, Blizzard’s copyrights by reproducing, adapting, distributing, and/or authorizing others to reproduce, adapt, and distribute copyrighted elements of the Blizzard Games without authorization, in violation of the Copyright Act
More specifically, Blizzard is trying to make this a copyright claim by saying that he violated the EULA by reverse engineering their games to make his bots work. But that's not copyright infringement. It further claims that he's engaged in "tortious interference" because he's convincing other players to break their EULA's with his bots.

Now -- as in past such stories -- it's quite clear that many people are not happy about the use of cheats and bots in these games. It may be absolutely 100% true that they diminish the gaming experience for others and present a real problem for Blizzard. In all likelihood, they probably do violate the EULA that Blizzard uses on those games that forbids such activities.

But that shouldn't make it a copyright violation.

Blizzard can go after them for breach of contract. Or it can cut them off from its service. Or it can change how its games work to try to prevent bots. But that doesn't mean it gets to twist copyright law to use it against something that has absolutely nothing to do with copyright. This seems like yet another case of copyright immigration, where copyright law is used to go after "some bad thing" because it's such a powerful law with such powerful remedies. Blizzard has been doing this for nearly a decade now, and it's high time a court told them to knock it off.
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Filed Under: bots, cheats, copyright, diablo, eula, james enright, starcraft, world of warcraft
Companies: blizzard

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  1. identicon
    Anonymous Coward, 12 Nov 2015 @ 3:49pm

    Re: Re: Re:

    I'm evidently not 100% clear on what a derivative work is

    The Quest for a Sound Conception of Copyright's Derivative Work Right”, by Pamela Samuelson, 2013
     . . . by the mid- to late-nineteenth century, courts and legislatures began to be more receptive to claims that specific types of derivative works should be within authorial control. In 1841, for instance, Justice Story ruled that an unauthorized abridgement of an eleven-volume compilation of George Washington's letters was not a fair abridgement, and in 1870, Congress amended U.S. copyright law to grant authors the right to control translations and dramatizations of their works. In 1909, Congress provided a more expansive but still specific list of derivatives that authors were entitled to control. Not until the to Copyright Act of 1976 (1976 Act) did U.S. law grant authors a general right to control the preparation of derivative works. . . .

    The derivative work right has proven unproblematic and uncontroversial in cases involving the nine exemplary derivatives and close analogues, but it has been highly problematic in some cases in which courts have interpreted broadly the clause with which the definition ends ("or any other form in which the work is recast, transformed, or adapted"). Some courts and commentators have interpreted this clause as giving copyright owners an entitlement to control all markets into which any emanation of their works might travel. Some have speculated that even noncommercial derivatives, such as amateur remixes and mashups, might infringe this right. Most commentators have decried the overbreadth of the derivative work right and offered suggestions about how it might be narrowed. Although one prominent treatise author considers the derivative work right to be superfluous, another thinks that the derivative work right has replaced fair use as the "most troublesome" doctrine of U.S. copyright law. Mysteries abound about the proper scope of the derivative work right.
    (Footnotes omitted.)

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