Blizzard tests the reach of copyright law

Free software users rarely, if ever, need to be concerned about the license that governs the applications they use. Unlike developers or distributors, users are unlikely to pay attention to whether a program is released under a BSD, GPL, or some other license—not so with proprietary software. If Blizzard Entertainment has its way, it could get a whole lot worse, with proprietary vendors controlling the behavior of its users and enforcing it by way of the Copyright Act.

Blizzard, makers of the online role-playing game World of Warcraft (WoW), has filed a lawsuit against MDY, Inc., makers of a tool that assists players in gaining levels within the game. The Glider program essentially plays the game for a user, creating a more powerful character, with additional riches, while the user is otherwise occupied. Some would claim it is a legitimate way to avoid some of the drudgery of "leveling up" a new character, while others would see it as a means of cheating. In any case it is clearly a violation of the Terms of Use (TOU) of WoW.

But those terms are only accepted by a user when they agree to the End User License Agreement (EULA) that comes with the game. Blizzard would seem to have plenty of ammunition to take action against players that use Glider, but instead of suing its customers for breach of contract—perhaps they have learned something by watching the music industry—they went after the easier target. Had they only sued MDY for "tortious interference with contracts", it probably would have attracted little attention. But Blizzard did something that aroused the interest of the Electronic Frontier Foundation (EFF), Public Knowledge, and others by trying to stretch copyright law to cover MDY's actions.

Certainly Blizzard is no stranger to using copyright law—in particular the much-despised Digital Millennium Copyright Act (DMCA)—in ways that many have found objectionable. The courts, at least in the Blizzard v. BNETD case, have agreed with Blizzard, though, shutting down the development of an alternative server for players of their games. Because of that, any time Blizzard makes a copyright claim, serious scrutiny from various watchdogs can be expected.

Blizzard's claim is that, by running Glider, its users are not only in violation of the contract they agreed to, but they are also committing copyright infringement. As has been seen in various file-sharing lawsuits, whenever copyright is supposedly violated on a computer, any program even tangentially involved in that violation is then accused of "contributory infringement"; this is the second claim that Blizzard makes against MDY in its suit. Under Blizzard's interpretation, users are allowed to copy the program into the RAM of their computer as long as they do not violate the TOU. If they do violate them, their license to copy to RAM—a necessary step to be able to use the program at all—is terminated; they are infringing Blizzard's copyright and liable for damages starting at $750 per illegal RAM copy.

If Blizzard's interpretation is upheld by the courts, many other acts would also serve as copyright infringements: choosing a character name that violates any of the thirteen name restrictions spelled out in the TOU, transmitting or posting "any content or language which, in the sole and absolute discretion of Blizzard, is deemed to be offensive...", or "anything that Blizzard considers contrary to the 'essence' of the Program", for example. Under those conditions, Blizzard could essentially claim copyright infringement any time they wish; racking up another $750+ each time the program is used.

Public Knowledge outlined two good reasons that the copyright infringement claim should be discarded. It is well established that it is not an infringement if making a copy is required to use the copyrighted material, as it is for software. Blizzard's argument that due to the terms of the EULA, those who buy WoW are not "owners" but instead license the software is also weak. The courts have always looked on software purchases as sales, not rentals under some company-controlled license, in much the same way that music and movies are purchased. Copyright owners would love to be able to eliminate the "first sale doctrine" that allows owners to sell used books and other copyrighted content, but the courts have so far been unwilling to go along.

One would hope that the courts would be persuaded not to see this dispute in terms of copyright either, but there is the risk that a tool used for "cheating" might not get the benefit of a well-reasoned view. There have been many occasions where the US courts have made surprising decisions regarding copyright. Undoubtedly there are various copycat suits waiting in the wings should such a decision be reached. In the end, though, neither Blizzard nor any copycats really want to go after the actual "infringers"—also known as customers—they want to go after others who allow users to use (or abuse) their software in ways they do not like. It is a classic proprietary software control strategy, and, thankfully, something that free software users do not have to endure.

There is an interesting comparison to be made with free software licensing, though. Licenses like the GNU GPL also restrict behavior based on copyright law; GPLv3, for example, makes some specific requirements on the patent-licensing agreements that one can make with third parties. Like Blizzard, those who release software under a free license can make a claim of copyright infringement (not breach of contract) if the terms of that license are not adhered to. There is a crucial difference, though: free software licenses do not regulate the use of the software, only its distribution. By claiming that users of the software violate copyright if it does not like their behavior, Blizzard is attempting to extend the reach of copyright law far beyond anything seen in the free software community.

It is certainly understandable that Blizzard would prefer that its users did not employ Glider or other, similar software. They believe it unbalances the game; making it unfair to other players. In the past, they have temporarily or permanently banned players for using bot software, but Glider is evidently more difficult to detect, which led to the current lawsuit.

Blizzard must police its own game, however, and should not expect others to do it for them. It is hard to see that Glider is doing anything particularly wrong here, though Blizzard may prevail on either or both of its claims. If players want to find ways around things they don't like about the game, they will, unless Blizzard finds technological means to prevent it. It would appear that there is a substantial business opportunity in helping players avoid some of the boring, repetitive parts of playing the game—one that Blizzard currently ignores.

Though there is no direct threat to free software from this litigation (unless one is developing free game-playing robots), any potential expansion of copyright is worth watching. The community relies upon copyright law to enforce its licenses, so watching how judges make decisions about such issues is important. While it may be that Blizzard is in the right to go after "cheaters" and a company that helps them, it should not be doing that by trying to expand the reach of its copyrights to this extreme.