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.

Filed Under: bots, cheats, copyright, diablo, eula, james enright, starcraft, world of warcraft
Companies: blizzard

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  1. identicon
    Anonymous Coward, 13 Nov 2015 @ 8:43am

    Re: Re: Re: Re:

    … by the mid- to late-nineteenth century…
    Tyler Ochoa gives a slightly more detailed account of the early legislative underpinnings in his 2004 article, “Copyright, Derivative Works and Fixation: Is Galoob a Mirage, or Does the Form (GEN) of the Alleged Derivative Work Matter?”. See pp. 1018-9 (pp. 29-30 in pdf), including footnotes 140-144 in that article.

    Professor Ochoa marks the amendment of 1856 as a stepping stone.
    Under the 1790 and 1831 Acts, the copyright owner was given the exclusive right to "print, reprint, publish, and vend" the work, and to prohibit the unauthorized importation of copies. Courts construed these rights narrowly; an unauthorized German translation of "Uncle Tom's Cabin," for example, was held not to be an infringement. In 1856, Congress added a right of public performance in dramatic compositions. . . .
    Today, of course, under the 1976 Act, we distinguish between the § 106(2) derivative works right, which includes “dramatization”, and the § 106(4) public performance right. Not so, back then. Looking at the 1856 amendment, we just see:
    [T]he sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place during the whole period for which the copyright is obtained.

    Oren Bracha, in his “Commentary on the Copyright Act Amendment 1856”, while directly connecting this early dramatization right only to the modern public performance right, still notes the deep nature of this step.
    On a more general level, the introduction of a public performance entitlement in dramatic works was part of the fundamental transformation of copyright's framework in the nineteenth century. In this process the traditional conception of copyright as limited to verbatim reprints was supplanted by a new understanding of copyright as the exclusive entitlement to enjoy all the profits from exploiting an intellectual work.

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