Wednesday, July 16, 2008

Crossing the Streams – Blizzard vs MDY

In the case against Michael Donnelly, Blizzard has once again conjured interpretations of the DMCA that border on magical. Without dissecting the whole thing, the claim is basically this:

1) If you copy an executable (.exe) from disk into RAM, this is copyright infringement

If the argument stopped there, this means that anyone that executes the software is, by claim, infringing upon copyright and violating the DMCA. Obviously there has to be more. So, it goes like this:

2) If you agree to and abide by the EULA, the EULA grants you a limited license to copy the program into RAM

This means that legitimate users who agree to ALL the terms of the EULA have a license to copy the software into RAM (aka, execute it). For most regular users, this is where it stops. For anyone else who may have violated the EULA, this doesn’t stop. Here it what it means:

3) If you violate the EULA, you have violated your license to copy the program into RAM

4) Since the copy of the program in RAM is no longer licensed, this is copyright infringement

Stop there. If you connect the dots to this point, we have just drawn the following:

5) If you violate the EULA, you violate copyright

It is exactly here where the streams are crossed and the dark gate opens.

What started as a breach of contract has been polymorphed into a copyright violation. In the real world, copyright law and contract law are two entirely different sets of laws. Damages are even paid in different ways. They don’t belong in the same lawsuit.

In this case, there is a well established body of contract law that protects Blizzard against what Donnelley is doing that has nothing to do with copyright law. Yes, wowglider breaks the EULA, but NO Wowglider does not make any illegal copies of the video game, never attempted to in the first place, and has no intention of doing so. It’s a program for botting, not making copies of the game. The DMCA has no place in this case.

So, what I am trying to understand is - why Blizzard is bothering to use copyright claims at all? By selling a bot that knowingly causes the user to break the EULA, Donnelley may held accountable for damages that result from this widespread breach of contract under something known as “tortious interference with contracts”. Why are they trying to grossly over-extend the DMCA to make it apply to EULA breaches via the “RAM connection”?

I am left with the feeling that something sneaky is at play. This isn’t just because of bnetd case history or even that the attorneys at Sonnenschein have had prior success with DMCA arguments. It may only be that DMCA is new, so it’s easier to “get away with things”. It may simply be that Hollywood-types like to make everything about copyrights. But, even these straightforward answers don’t add up for me. I think there is something much greater at stake here. The future of persistent virtual worlds is huge – billions of dollars. I think that by polymorphing EULA’s into copyright infringement, Blizzard is setting the stage not for WoW, but for their next big game. This case law will be used to protect their future games from competition.

As we all know, EULA’s typically contain clauses about the use of 3rd party programs, publication of performance statistics, and forbid reverse engineering. Taken to the extreme, I could become a copyright infringer because I publish in my blog the percentage of CPU usage used by WoW as reported by Microsoft’s taskman utility. BTW, the usage averages about 49-51% on my Vista machine. So, I have violated the EULA, therefore my copy of WoW in RAM is no longer valid, and I am now a copyright infringer that may have to pay six figures in willful damages.

Blizzard has pulled out the DMCA billy-club again and again - and they may have reached too far this time. The argument that RAM is the magic connection between a EULA agreement and a copyright infringement is creative – yes they get lawyer credits for coming up with that. However, the claim that making a copy of a copyrighted executable into RAM is copyright infringement is simply wrong. It’s wrong because it’s against the law. Unfortunately, in this ruling, the Judge didn’t see it that way.

Copyright law specifically addresses the RAM issue clearly in 17 U.S.C. §117. In order to execute a copyrighted software program, a copy must be made into RAM. That a copy has to be made into RAM is a simple requirement to get the software to execute. This section of copyright law makes it clear:

(..) it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program (...)

Could it be more plainly stated? The copy into RAM is not something that infringes copyright, per the law. However, the court’s opinion was that “users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard's copyright”. This is a travesty.

Nobody here is saying that cheating should go “unpunished” – it’s clearly a violation of the EULA. It may be a stretch to prove damages that result from wowgliding, but Blizzard is welcome to try. It is reasonable for Blizzard to want to stop botters. There are established laws and methods by which Blizzard can do this (again, that have nothing to do with the DMCA). But stop there. Bringing the DMCA into play is reckless and short-sighted. If handled improperly, it stands to set legal precedents that take away fundamental rights granted to software users. EULA’s can contain any restriction imaginable - they could turn the most absurd actions into DMCA violations. Let me just ask you this - does a company that pulls in $1.5 Billion in annual revenue need to employ such brazen tactics to be and stay successful? One has to ask, how much is enough? Frankly, I think it borders on rude.