Except that "running a program" isn't copyright infringment. [LWN.net]

Except that "running a program" isn't copyright infringment.

Posted May 9, 2008 15:46 UTC (Fri) by giraffedata (subscriber, #1954)
In reply to: Except that "running a program" isn't copyright infringment. by ekj
Parent article: Blizzard tests the reach of copyright law

This is a -CLASSICAL- sale, as straigthforward as it gets.

I'll agree it's a sale, but there is plenty of room for interpretation as to what was sold. Was it a regular "copy" of the game, such that the statute about having the right to run an owned copy applies? Because non-lawyers probably use the phrase "purchase a copy" even when they totally understand they're technically just getting a copyright license and borrowing installation media, so maybe that's what the parties intended here. At least one of them.

Were there no clarifying details in a subsequent document, I expect a court would interpret it most simply, which is as a plain sale of a CD. But I think the subsequently negotiated details are relevant here.

We probably don't have to argue about that, though, since as long as we're being hypothetical about the document in the box, we can also hypothetically assume the phrase "purchase a copy" was never used -- the consumer just put a box down on the checkout counter, the checker asked for money, and he paid. It's easier to believe in that case that the consumer doesn't own a copy of WoW.

Another reason the point may be moot is that even if the contract was for a plain sale of a CD, that just means the shopkeeper is the one who has to pay for the copyright infringement damages: His contract with Blizzard definitely doesn't make him the owner of the CD, which means he couldn't sell it to the consumer, which means the consumer violated copyright law when he copied it in order to run it, so the consumer owes Blizzard money, so the shopkeeper owes the consumer money for breach of contract.

(Log in to post comments)

Except that "running a program" isn't copyright infringment.

Posted May 11, 2008 1:32 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

When do most people clearly buy a license and borrow the media?

It doesn't really matter what most people do. If anyone does it, or a judge believes anyone would and call it "purchasing a copy," then the fact that someone used the phrase "I want to purchase a copy" doesn't preclude that kind of transaction.

But it does happen. In some areas of the software industry, it is the normal way to buy software. It's also normal in some other parts of the copyright industry. It's how theaters buy movies.

Unless you don't mind that your grocery store is only selling you a license to its fruit, one that may not include you eating it or taking it from the store.

Unlike fruit, a CD is something you can get a lot of value out of even if you don't own it. So while it's highly unlikely someone in a fruit purchase didn't intend to own it, it's entirely reasonable for a person to buy the ability to install WoW and not buy the CD that it comes on. I'd do it if that's what the store was offering.

Except that "running a program" isn't copyright infringment.

Posted May 11, 2008 13:07 UTC (Sun) by dvdeug (subscriber, #10998) [Link]

So if anyone might do it, you might be doing it without knowing it? That's fraudulent; the
whole essence of a valid contract is that both sides have a meeting of minds on what the
contract means.

Theaters don't buy films this way. I can't believe any business person would stay in business
if they paid good money for a film before reading the contract, and then realized they
couldn't show it because they didn't have Dolby THX Surround X or whatever. (Maybe Paramount
will send them a check in a few months, minus shipping fees, after they've returned the film.)
I don't think anyone buys software and signs a contract for it; they know the difference
between buying software and licensing software.

You can get a lot of value out of a fruit if you don't own it. Maybe the license just says you
can't resell it, or publicly display it, or make it into fruit salad. Is it all right to live
in that world?

Except that "running a program" isn't copyright infringment.

Posted May 11, 2008 17:48 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

So if anyone might do it, you might be doing it without knowing it?

No, if anyone might do it, you might be doing it knowingly. So one might conclude based on other evidence that you are in fact doing it.

That's fraudulent;

Fraud is intentionally misleading someone for one's own gain. So far, none of the scenarios I've talked about involve someone tricking the WoW customer. They involve misundertandings and differences of opinion.

the whole essence of a valid contract is that both sides have a meeting of minds on what the contract means.

That's the point I've been trying to make. If the WoW customer reasonably believed he was buying a copy and the shopkeeper reasonably believed he was selling only a copyright license, there is no contract. In that case, the customer has to give back the CD.

So the only question was whether a shopkeeper could reasonably believe the customer wanted a copyright license without a copy. The fact that it's a reasonable thing to buy and others buy similar things argues in favor of that.

Theaters don't buy films this way [reading the full contract after the initial transaction].

Agreed; that isn't the "this" I meant. I meant a theater owner buys a copyright license, and takes possession of a copy, but does not buy the copy.