Dralmoo

IANAL, but in "plain english" that certainly appears to specifically prohibit buying accounts, at least.

 

diospadre

Blizzard attempts to shut down all sales of used software and games - The Something Awful Forums

That's a good example of the kind of shit Gurg wanted to avoid here.

 

Talgog

That does, but the issue with IGE, the vast, vast majority of their business, is the currency trade. TOU Sub 8 deals with currency trade explictly, and most of the language is talking about how you have no right to sell anything. It only says that you may not purchase an account. It does not include currency, and even Blizzard's good/bad/no reason termination is not used for going after currency buyers.

TOU Sub 8 frankly has a huge number of issues contained in it that are not relevant here, and which could and have (in other contexts) supported major legal papers on the issue of virtual property. As an example, Second Life was taken to court on a related manner (using good/bad/no reason account control provision in virtual land dispute).

Again, that's a whole other ocean of fish. My point was only that you have a much harder argument with tortious interference with businesss against a gold seller like IGE than against a MDY, since IGE is not explictly inducing someone to break the TOU by selling gold, and that is their primary business. IGE and others are inducing players to violate the EULA/TOU with things like powerleveling and account trade, but it's not like MDY where 100% of their business was based on flagrant violations.

I think you could get IGE, but it would be much more of a fight than this was. It's frankly a very big chip in IGE's favor that Blizzard says you may not purchase or sell accounts, but only prohibits the sale of gold. Believe me, Blizzard's lawyers have certainly raised the idea to them. It is semantics, but it is extremely important semantics, with this being a binding contract and all. Blizzard has not explictly barrred the buying of gold, and everyone knows that enforcement of that is at least 99% supply side.

I have my suspicions as to why Blizzard does not want to stamp out gold buying, but those are not relevant here.

 

• Arawethion

The court's distinction between different parts of the EULA as either contractual provisions or copyright license limitations is interesting. It seems to nullify MDY's argument (EDIT: and rampant e-lawyer conclusion) that, as a logical consequence of this ruling, all breaches of similar contracts will also be copyright violations.

The Ninth Circuit precedent in Sun Microsystems, cited at 6-7 of the order, seems to control the issue. The count concludes from the text of the EULA that the relevant section of it is in fact a limitation on the license and as such can give rise to a copyright claim. I'm not sure this can be refuted by Storage Technology (aside from the fact that Sun is binding here and Storage isn't). Gurg pointed out the block quote on page 11 of MDY's brief, but look at the scenario that's laying out: a book has been copied in full, pursuant to a license, and then at a later point an action is taken which breaches the agreement. Here, as I understand it, when you use wowglider, you launch WoW from a launcher provded by Glider. The very act of copying that takes place at that point (and notably, Blizzard seems to have clear Ninth Circuit precedent that loading a program into RAM is copying) is a copy that is taking place outside of the scope of the limited license agreement in the EULA, which gives rise to a copyright claim under Sun.


I do understand that that's a bit weak--that the legal status of the copy depends on the relative timing of the loading of the programs. But that seems, to me, to be a direct consequence of Storage Technology, once we've already established that loading up a program is copying. Of course, I should probably read Storage Technology at this point, but I do think it's academic. In either scenario, there's a valid copyright claim under Sun.

Answers to Moonkin questions:
0) Read the TTT/use the spreadsheet: http://elitistjerks.com/f47/t66856-moonkin_pve_dps/
1) Maintain high DoT uptime. Use WiseEclipse.
2) Nothing beats 2T8.
3) Yes, sometimes you cast many Wraths and no Eclipse procs. Deal with it.

 

rooj

First of all, I am impressed. I am generally impressed with the breadth of legal analysis given to a single district court order. I have no experience in copyright, or business torts, so other than the clarity of the presentation, I cannot comment.

My curiousity has been piqued however, and I wonder whether a "fair use" doctrine could be used as a defense to a software copyright claims. Obviously MDY has a hard time arguing a fair number of the requirements, (commercial use, transformative, etc).

But, I wonder, if someone were to issue a mod that changed WoW into a political commentary piece if it would be successful. As a hypothetical, I assume that an enterprising programmer who made a mini-instance in WoW where inside the instance it had Al-Qaeda mobs and the end-boss, similar to the Scarlet Crusade storyline, turns out to be McCain or Obama, would be protected. The implementation would certainly have to be voluntary or it would run afoul of hacking laws, and it would certainly not protect oneself from pure Contract claims. But a clearly protected speech component with minimal or zero commercial purpose, would seem to fall squarely in the fair use doctrine, no?

The question then becomes, how much of Blizzard's copyright claim hinged on the fact that MDY attempted to make money on the bots? What if someone just posted this modification on his personal website and allowed free downloads? Could MDY have attempted to create a free expression component to their client's decision to write the bot, rather than the "I'm lazy" aspect highlighted in the brief?

Perhaps this speculation is exactly what the forum moderator doesn't want this thread to turn into. If so, I apologize. I read the analysis, and my litigator/academic brain started asking some questions...

 

kronchev

You seem to have confused the term "political commentary" with "idiotic jokes that say nothing"

Elitist Jerks forum: Now work safe, because you don't want to get caught wasting your company's time!

It was a question of how the abilities of the fight are handled. I did not know the answer so I come to the place where I expect to see well formulated, concise and correct answers. Not snotty comments. - eclectic778

Vent is only necessary because of bad players. - ebbv

 

◊ Praetorian

Ah, I actually glossed over that technical detail. I didn't realize that you're actually launching (i.e. "copying") WoW directly through Glider, as opposed to starting WoW (copying it) and then having Glider hook into the executable in memory (breaching the ToU). I agree that this changes the analysis.

 

rooj

I apologize. I was not attempting to make a joke, nor was I attempting to actually make an informed or even give an interesting example of political commentary. I was merely trying to find a basic example of a way to transform the medium (wow) that would easily fall under "political" and protected speech. Feel free to insert any type of protected speech you want that could find expression in the game. How about creating a vendor that sells letters that quote chapters of the Federalist Papers? It doesn't matter. It was my mistake, I should have used a generic example. And yes, I freely admit that my example was poorly chosen and wouldn't qualify as good political commentary.

 

diospadre

I'll have to read it again, but didn't Blizzard and the court lay it out as 1. The EULA and TOU establish a limited license, 2. Using Glider is one of the things that revokes permission to use the software, 3. Further use of the software is copyright infringement?

I think the argument the court went with is that once you've run Glider, any further use is infringement, not that the user has infringed by altering WoW itself by loading WoW through Glider. I don't think that the timing (was Glider loaded before or after WoW, does one launch the other, etc.) really matters, just that once you've used Glider your license is revoked and any subsequent copying is infringement.


I was asking about the technical parts of this ingame earlier, but imagine a scenario in which solid state hard drives become so advanced that RAM is no longer used and the game code is just run right off the hard drive (or is this totally impossible regardless of speed?) Would that mean that the only copy that would ever take place would be the one time you installed it onto the hard drive, and no copyright infringement claim could be made against someone who used Glider or otherwise broke the EULA/TOU because you never "copied" the game again?

 

bv728

The Copyright Claim requires the Loading Into Ram element; if the Glider Software did not load any of Blizzard's software into RAM, it does not create an Unauthorized Copy, and thus the decision goes to Contract Law.

Specifically:
If, once the software is copied, you modify it and the result violates the EULA, you've created an Unauthorized Derivative Work, I believe, which real lawyers can discuss the consequences of, but MAY be a different kettle of fish. As Gurg asked to minimize the amatuer legal positions, I'll shut up now.

 

Talgog

Yes, because of how the Court construed the Terms of Use.

You need a license to copy the software to RAM. Whatever you may think of that in these circumstances, that's the law in the court where this case is being heard.

The issue here is limited versus unlimited license. The court then determines that, as is facially obvious, this is a limited license. The court then determines that the EULA contains terms that are limitations on the scope of the license, in addition to contract terms:

A provision is what the court says it is (see also liquidated damages versus penalty clauses), which is why it is good to not piss off the court with unsupported argument and other dumb lawyering tricks.

The Court concludes

It's a pretty methodical opinion, driven by Ninth Circuit law on RAM copying and the construal of Section 4 of the TOU as a limitation on the license and not a contract covenant. Storage Technology appears to be irrelevant, as well as just persuasive authority compared to binding authority. The Federal Circuit is good persuasive authority in IP cases, but that doesn't do anything about Sun Microsystems (1999) and MAI (1993).

That also explains why Blizzard wants cases heard in California, if you look at the forum selection clause in the EULA.

 

Duilliath

Could you explain this please for non-Americans ?

 

Talgog

Choice of forum (court) and choice of law are very big deals in United States litigation. Our states have differing common law and differing statutes, and we also have eleven different United States Circuit Courts of Appeal, the 9th being one. This is in addition to the Armed Forces, Federal Circuit and DC Circuit.

United States court of appeals - Wikipedia, the free encyclopedia

The differences can be so glaring that they can decide cases. In one jurisdiction, the action is barred by statute of limitations. In another, the juries give huge damages so you don't want to be a corporate defendant there. In another, the local state judges are known to be more or less in the pocket of the plaintiff's bar, so you don't want to be there either. In another...you get the idea.

Generally, if the jurisdiction stinks and you can't get it removed or transfered, you settle.

Unless the United States Supreme Court has imposed precedent nationally, the State Supreme Courts (frequently the State Appellate Courts, as State Supreme Courts hear very few cases) and the Circuit Courts of Appeal, are the final say on law in their jurisdiction. So the law can most certainly differ. It's not at all unheard of to have conflicts between State Supreme Courts, or between Circuits.

This entire subject of what can be heard where, and what you can get heard somewhere else with creativity, consumes entire semesters of law school.

Blizzard's lawyers no doubt know about the 9th Circuit holdings on software copyright, as they significantly predate WoW. Hence, they want disputes that are probably going to involve some copyright issue heard in California, where they can get federal court subject matter jurisdiction (and federal law applied) because copyright law is Federal law, and then you can get supplemental jurisdiction over the tort claims, also heard in federal court (although tort law is state law). They want Los Angeles probably because those courts hear a large number of completely meritless copyright claims related to Hollywood.

There is a whole bunch of other law stuff in there, we call it the Erie Doctrine, but it's horribly confusing even for practicing lawyers in this country. I'll omit it and you can thank me later.

This is an extremely arcane area of the law, but it is staggeringly important. Hence, almost any form contract you sign will attempt to impose choice of law and/or choice of forum.

 

rooj

Talgog is referring to the fact that this decision is based on law that emanated from the 9th Federal Circuit Court of Appeals. The US federal court system divides the appellate system into different regions of the country. (There are 13 federal circuits, all regional courts with the exception of the DC circuit, and the Federal circuit an appellate court that is designed to handle trademark cases). The 9th Circuit includes California, Arizone, Washington, Hawaii, Alaska, Oregon, Idaho, Nevada. This particular decision came from a federal district court (a trial court who is obligated to follow circuit court law, unless it is a state law claim), sitting in Arizona. Federal district courts applying federal law within the Circuit court jurisdiction are obligated to follow the case law of that circuit.

A small nitpick, but forum clauses are not the same as choice of law clauses. Finding valid personal jurisdiction in an Arizona federal district court (where the obvious contractual clause didn't get applied here), doesn't in fact always control what case law applied. In this case, because copyright cases are based on the federal copyright act, then 9th circuit case law would apply. However, the tortious business claims, based on state law, would either be Arizone or California state law. The forum does not always control choice of law.

In fact, the aforementioned possible eviceration of binding arbitration clauses has a much larger possible effect on those type of litigation control. It used to be one could contractually agree on both forum clauses and choice of law clauses for arbitration. If binding arbitration clauses are no longer considered valid, then the ability for corporations to control litigation contractually will be thrown for a loop.

Btw, there has been various mentions that the 9th Circuit law that found "copying to RAM" fell under the "copying" provisions of the Copyright Act as controlling. Is there a circuit split on this issue? The Circuit case relied upon was decided several years ago, which would allow plenty of time for a circuit split to develop.

*Doing a quick citecheck I found 2 circuit decisions, the previous mentioned Federal circuit decision of Storage Systems. Storage systems does not discuss the RAM issue, but mostly the limitations of license. There is no current circuit split and the general academic support is on MAIS side of the equation. (a federal district court in virginia as well).

Stenograph L.L.C. v. Bossard Associates, Inc., 144 F.3d 96 (D.C. Circuit 1998), on the other hand does discuss the RAM issue, but does not reach the actual argument, interpreting the litigants arguments were based on a different theory. The Court however, does outline an interesting approach to idea that copying to RAM may not be "copying" in terms of the copyright act. Already other courts have found other types of "necessary" copying to not be violative of the copyright act, and a court already held that reverse engineering is not in fact a copyright infringement. (2 9th circuit cases, 203 F.3d 596, and 977 F.2d 1510).

I just browsed, 180 ALR Fed 1 for a nice summary of copyright law and computer programs.

 

Keeb

So... by this (questionable) logic, Blizzard could also sue Brian Kopp and Joana for providing leveling guides? I know that using Brian Kopp's guide, I can hit 70 in under 10 days, so according to the aforementioned logic, Brian cost blizzard 10 days worth of my subscribing playtime? How about the fact that without such a helpful guide to level, I likely wouldn't have hit 70, and I would probably not be subscribing now? Glider works in much the same way - do you honestly think that these people would pay for their multiple accounts if they weren't botting? Most likely not - thus glider is actively increasing their subscriber base. Also, Blizzard's logic seems to be predicated on the idea that once a player hits 70, he/she is going to stop playing the game - as they are citing the time "lost" in subscriptions before the player hits 70. I don't understand this: is Blizzard trying to claim that I have more fun and am more likely to continue playing the game if I spend more time leveling up my fourth character to 70?

I don't glide, but I can't see how Blizzard honestly loses money because of Gliders. The people who buy glider-leveled accounts are paying for subscriptions that they otherwise wouldn't have because they wouldn't have wanted to level to 70 anyway. The people who buy gold are likely to continue playing because their playing experience is enriched by the extra gold they purchased (why else would they have bought it?). And in terms of a botter "farming your area"... how is that any different than a player farming your area? In truth, it's not - it's just something you're using as justification to be angry. And honestly - who here has stopped playing because they know that people out there glide? Anyone? Who here has bought a rare BoE epic/blue off the AH? Ever realize that you may very well have been able to buy it because a bot found it? I think people are being pretty short-sighted about the issue in general.

Blizzard's argument about loading into RAM does seem suspect at best. I'm not an expert programmer or legal mind, but the fact that Blizzard can tell me how to use my computer bothers me.

 

janodandre

The glider launchpad was active from 10/04/05 to 30/01/2008 but afaik it was only used as a convenience so glider didn't have to scan memory trying to find the game. Glider doesn't really hook in the traditional sense (eg: setting a callback), it reads the game state and then emulates keyboard events. WoW code has never been modified. Common sense tells me this is hardly a "derivative work" because loading WoW results in exactly the same program no matter what the launcher is. Im surprised at the legal technicalities at work in USA law.

Hamut (one of the programmers behind Glider) stated today that they intent to appeal and continue in business:
This post by Donnelly may also be of interest:

 

Xavias

This analogy is inaccurate because the money lost is a consequence of laws supposedly being broken. Not the other way around. Laws were supposedly broken, and damages are therefore heard. Had Joana broken Law whilst doing his guides, Blizzard could possibly sue him.

 

Shadout

Are you comparing a written guide with a bot like Glider?

Blizzard losing money? Your argument might be true, but its a silly argument nonetheless, just because it can never be proven right or wrong. You might as well say they lose money when people quit the game because they are annoyed by botting and goldselling being possible (and thus ruining the game economy, their game experience and sense of fairness or whatever...).
Tbh, I doubt Blizz sued Glider because they actually believe they lose lots of money directly on Glider users. But they kinda have to argue they are losing money on Glider, before it would be a legal issue I assume?
I guess they are much more worried about the indirect effect of botting. First, if Glider cant be stopped, what other hacks could then be made for WoW they couldnt stop either. Don't underestimate bad press either. Blizz are one of those companies, at least on the surface, taking a very hard stand against cheating, goldselling etc. compared to a company like SoE which pretty much encourage selling these days. Blizz must (whether right or wrong) surely believe they earn more money doing so, than just accepting the cheaters, sellers etc.

I'm surprised they dared to try it in court though, would have been pretty nasty for Blizz to actually lose this.
I just hope more gold seller companies are next on the list

 

Xavias

There is no question that Blizzard's intentions are nothing more than to stop the Glider program by any means possible. Bankrupting them via claiming Lost Profit damages is just another means of doing so.

 

Whiteknight

Would the argument they made possibly apply to any code modifications? Or would there necessarily have to be the intention to somehow violate the ToS?

It seems to me that in-memory program modification is an incredibly gray area. There are a number of ligitimate ways where programs get modified in memory.

Consider for example, an operating systems developer working on figuring out why an application (e.g. WoW) doesn't work with a new rev of the OS. He loads up the game, runs it and attaches a debugger to figure out why it's crashing. For those who aren't familiar with debugger technology, the way software breakpoints are set is a byte of the programming code is stored in the debugger, and replaced with an interrupt instruction (code modification in memory). When the interrupt fires the debugger replaces the original instruction.

There are a few other examples I'd consider ligitimate use (e.g. Jitting, Rebasing, etc). Some are commonly understood - enough so that they could be interpreted as normal services being utilized by the program itself, even if automatic. However the debugging example is the one I'd be most curious about.


I guess my question is; does their argument only require in memory modification of the program, or do they require the intent to contravene the contract for some malicious purpose too?

 

Kigale

My understanding of computer function is weak, and my understanding of the American legal system is weaker, so I could be completely out to lunch here so be gentle if I'm wrong.

Please confirm my understanding of this case. The computer "copies" WoW from the hard disk to RAM, this is considered an "authorized copy." When Glider is functioning the "copy" is slightly different so considered "unauthorized" and is a copyright infringement. Is that it in a nutshell?

Now here is potentially where my ignorance will shine: Could other companies use this argument against any software that so much as looks funny at another while in RAM? Since Windows is run on RAM, could Microsoft sue another software company for modifying the OS even slightly? Or do no programs modify Windows at all?

 

webmeister

Wouldn't this section also mean that opening any game assets in any way other than the official client constitute a copyright infringement? I'm referring specifically to MPQ viewing software like wowmapviewer and wowmodelviewer.

 

Zulrai

The way memory management is designed in systems right now, you'd be loading into some non-hard disk-based memory at some point (even if it was straight into the processor's cache). Plus I don't see any advances occurring in hard disks that overcomes the amount of time needed to access the disk vs. reading from physical memory. On that note, read my comment following the next quote:

I have a feeling that Blizzard would take the "RAM" argument to a much more technical point even if it never touched the RAM as most people think. Your processor will not just execute any command directly from the hard disk and then store the result back on it; at some point, part of the execution is going to hit another form of temporary storage (read: physical memory, even if it isn't your regular RAM on a stick) and I'd imagine Bliz would use that as a minimum to claim that you are using more than your hard disk to run the client.

The copy of WoW is not modified, but running it along side Glider is unauthorized. In other words, you are not supposed to run WoW while running Glider.

I kill two dwarves in the morning...

 

Woozle

After about a half an hour argument with my roommate over whether Glider represents an unlicensed derivative work, we eventually agreed that this aspect of the argument is much harder to nail down. What's much easier to analyze is what you've posted above. 117 gives you certain rights. Glider copying WoW to RAM is not amongst those rights, therefore you have a 106 violation. I'm not sure I like 117 as a means for software copyright enforcement, but at least its more straightforward. This goes to your comment about the relative timing of the loading of the program, I don't think it should matter, but under the law it does.

The tortious interference claim seems the most obvious way for Blizzard to go after the MDY.

Two issues still elude me though:
1. Given that copyright can be infinitely divided, can you divide up the copyright license into different parts of use such that you COULD limit someone's right to read the last 10 pages of a book? (such that it would give rise to a copyright claim not breach of contract claim, I don't care about that)

2. Does Glider represent an unlicensed derivative work? (because it hooks into WoW's libraries somehow, or not maybe it just simulates keystrokes, (should that matter)). This could be another avenue for Blizzard to seek damages, but I believe it has been universally rejected in the past (ie Windows emulators as an example).

 

Azurai

None really - under the Uniform Trade Secrets Act (which was passed by AZ) the court can issue an injunction to people involved and also allow any disclosure regarding it to be in text form so as not to be caught by any type of recording device.

You would have to prove Warden is not a trade secret first. Since Blizzard is obviously trying very hard to keep it from public knowledge and it cuts operational costs (and thus has a monetary value), you'd have to prove it was public knowledge already. Since it gets updated in an attempt to stay ahead of malicious coders, it stands to reason that this would come down to abstract concepts about information security, but of course that's an entire case on its own.

Realistically I'm not sure you'd want to defend yourself from an accusation of circumventing someones security measures for private gain from the position that since you already did it so they aren't really a secret anymore...