MDY Industries LLC ("MDY") are the owners, creators and operators of the software program WowGlider ("Glider") which is a "bot." What this means in essence is that Glider plays WoW for its owner whilst the latter is away from his computer. The advantage of Glider is that it enables the player to advance more quickly in the game than would have otherwise been possible. MDY filed an action in court in the first instance seeking a declaration that Glider did not infringe the IPR of Blizzard. Blizzard, in turn, filed a counterclaim and third-party claim against MDY on seven grounds including breach of copyright. This post will focus only on the copyright infringement claim.
Blizzard submitted that the users of WoW are in fact licensees who are authorised to copy the copyrighted game client software only if they do so in accordance with the EULA and the ToU. In this present case, Blizzard contended that users who launched WoW using Glider were actually acting outside the scope of license granted to them by the EULA and ToU and were in fact creating infringing copies of the software in question.
MDY`s answer to these submissions was that, if there was any breach by the users, it was actually a breach of contract (EULA and ToU) rather than a breach of copyright. MDY argued that users of Gliders do not infringe the copyright of Blizzard as they are licensed to copy the game client software to the computer`s random access memory. This licence is acquired upon purchase and loading of WoW. MDY accepted that the EULA and ToU contained express prohibitions on the use of bots. However, MDY argued that the use of bots by users of Glider was a breach of contract rather than breach of copyright.
The Court carefully considered the terms of the EULA and ToU and in particular paid specific attention to section 1 of the EULA which addresses the nature and scope of the licence Blizzard grants to users of WoW. The judge ruled that in this case, the licence Blizzard grants to users of WoW is limited in scope by the EULA and ToU as this is expressly provided by the aforedmentioned contracts. Hence, the actions of the Glider users do infringe the copyright of Blizzard.
This is a very interesting ruling which has attracted a lot of criticism from the EFF . The concerns of the EFF are to some extent justified: if an individual who is breaching the terms of the contract of use is actually found to be in breach of copyright, s/he will be liable for far more in terms of damages. However, this does not detract from the fact that in this instance, a true construction of the EULA and ToU supports the conclusion reached by the Court.
When the right legal approach gives way to the wrong factual answer, the real question is how does one redress the inherent flaw within the mechanism which leads to the incorrect answer. This ruling further supports my view that the current legal framework of "old wine in new bottles" does not satisfactorily answer the legal issues posed by cyberspace. This ruling is more a case of old wine in new bottles gone bad... Let`s see how the sequel pans out in the appellate courts.
Disclaimer: The copyright in this image belongs to WOW.