School of Information assistant professor Brian Carver filed a friend-of-the-court brief in the 9th Circuit Court of Appeals on behalf of the non-profit public interest group Public Knowledge, asking the court to find that software users don’t immediately become copyright infringers if they violate the company’s (often clickthrough) end user license agreement (“EULA”).
Public Knowledge is a Washington, D.C.-based public interest group working to defend citizens' rights in the emerging digital culture.
The appeal comes out of a federal court in Arizona, where Blizzard, the makers of the massively multiplayer online game World of Warcraft (“WoW”), accused Michael Donnelly and his company, MDY LLC, of copyright infringement because he created and sold a program called Glider.
Glider is a “bot,” a program that lets players automate some of the more tedious aspects of playing WoW, such as traveling long distances, or doing repetitive, grinding tasks in order to gain in-game gold or experience points. For a variety of reasons, bots are highly disfavored by Blizzard, which has banned their use in their EULA and their terms of service. So using a bot would violate your agreement with Blizzard.
But would it make you a copyright infringer? Blizzard says yes; Carver and Public Knowledge disagree.
The case hinges on a few esoteric points of law and technology. Playing WoW (just like using any other computer program) makes a temporary copy of the software in your computer’s RAM. That, Blizzard argues, is “reproducing” the copyrighted game, and copyright infringement. Except that the copyright law specifically exempts copies necessary for running computer programs; section 117(a) of the US Code’s title 17 says: "... it is not an infringement for the owner of a copy of a computer program to make ... another copy ... of that computer program provided that such a new copy or adaptation is created as an essential step in the utilization of the computer program...." But Blizzard counters that WoW players aren't the "owners" of the software DVDs, so the legal exemption doesn't apply to them. Why don't they own the disks? Because the click-through end user license agreement (EULA) says they don't.
Carver's brief quotes multiple legal precedents that counter Blizzard's claims, along with analyzing leading treatises on copyright law and the legislative intent of the relevant statutes.
"The decision ... affects not just two companies and their customers, but purchasers and users of all software," according to Carver. "Such a legal regime will do tremendous harm to the innovation, creativity, and user rights that Public Knowledge seeks to protect."
