Oh you have a freeshard? That'll be $88m please!

[jakonovski]

I think it's ridiculous by definition really. 88 million never changed hands and nobody will ever pay 88 million damages. So what's the point of the verdict?

To scare other people into not doing the same thing. That's what statutory damages are for. Not everyone who is wronged will actually sue, fewer will win. Statutory damages are there to assure that paying real damages doesn't just become a "cost of doing business."

Maybe if it's a real business getting sued, and not some WoW scammers. In this case I think the pertinent question is, does this punishment make it impossible for them to ever become productive members of society again. In Finland getting slapped with a such damages would mean, and has meant, that the person is never again able to achieve a reasonable living standard as a law abiding citizen, thanks to income garnishmet or whatever it's called. Making them in effect either permanent welfare recipients or career criminals.  

[robusticus]

These were not really donations at all but cash shop purchases. Selling epics to rich players is always something Blizzard has resisted because it makes for a crap game experience for 95% of the players.

Well probably more like 25-30% but as long as you agree it isn't 100%, what about the leftovers?

I just don't get how you can restrict the way people play so much via the EULA and TOS and also claim people who disagree as damages via lost sub revenue in all these cases. 

I'd bet even money every single one of the people who use private servers A) knows it isn't the real thing and B) either does, won't or can't have an official account.  If that's true, there are no actual damages. 

Just doesn't seem realistic to only have one or two flavors and if you don't like it don't eat ice cream.

[Merusk]

Yeah, It's not like they're using an existing brand's power and marketing to sell their inferior knockoff product of the same name. 

[Stabs]

It seems to me that the main strands linking the arguments against this settlement are:
 - "I should be able to play MY game any way I choose after I'VE paid for the client"
 - sympathy for the difficulty the respondent will have coping with the damages.

There are two ways to consider the first point - legal and ethical. Legally there are tons of things you only buy part of. I saw Predators in the cinema but even though I've paid for it I don't have the right to download it off the internet. I paid to get into London Zoo but I don't actually own any of the animals as a result. Even if there were no EULA paying to access WoW doesn't mean you own WoW. There really is no substance for the claims that the ruling in this case doesn't make legal sense, it's a perfectly normal and rational civil judgment.

Ethically I think there's more valid room for debate. If you believe that Intellectual Property Rights are stifling and excessive there's a lot of material to support your view. In particular I'd cite the character in Neal Stephenson's The Diamond Age a work of sci fi in which the future's most successful businessman is a patent troll. (There are tons of real examples too).

I do think however you can't just let everyone steal everything or else no one gets paid for creating art, games, movies or novels. Sure, a lot would be created by amateurs but I think that hundreds of people collaborating on a project wouldn't happen in a world where anything you put out there gets undercut by unauthorised versions within minutes.

As for sympathy I guess many of the young gamers identify with someone doing something kinda dodgy on the internet. Who here hasn't crossed an IP line? Even visiting a webpage could be deemed intellectual property violation - by coming here our computers have copied (cached) F13 without permission. But remember too that games companies are trying to make money in a recession on luxury goods. If people can access the games illegally and free instead of paying it's going to hurt the industry a lot. Look at the record industry. If you're honest and pay for your games do you really want freeloaders to reduce the amount of new games in the years ahead with their piracy?

[angry.bob]

I think the most interesting thing about the whole thing is they had 427,000 active users. Doesn't that make them the second most popular MMO behind legitimate WoW?

[Trippy]

I think the most interesting thing about the whole thing is they had 427,000 active users. Doesn't that make them the second most popular MMO behind legitimate WoW?

No. There are (or were) MMORPGs in China with over 1 million PCU (which means a lot more "active users").

[Goumindong]

It seems to me that the main strands linking the arguments against this settlement are:
 - "I should be able to play MY game any way I choose after I'VE paid for the client"
 - sympathy for the difficulty the respondent will have coping with the damages.

[...]Even if there were no EULA paying to access WoW doesn't mean you own WoW.[...]

This is true. But preventing you from connecting to another server which provided as similar service would be illegal.


With regards to the legal issues:(IANAL, but have done research into the legal issues relating to these matters)

If, as "Dark_MadMax" claimed there was no copyrighted code on the server,  then there is no liability on the part of the server owners.  EULA violations are not copyright violations and do not require bypassing copyright protection methods. This means that there is no copyright violation(nothing was copied) or DMCA violations. All violations are violations of the EULA contract and the most damage that can be done is that the contract is revoked by Blizzard for the person who connects.

Whether or not Blizzard can compel the server operators to disclose information which would allow Blizzard to revoke those contracts I am unsure on. For the most part as well, Blizzard, even if they do know who violated the EULA, only has the ability to revoke access to their servers based on the violation(by law they can compel the individuals to remove the software, but this is not feasible).

There is however, contention on whether or not EULA's which only allow access are legal. For instance, the music industry has long argued and attempted to "license" the music that was sold to the general public by way of records, tapes, and CDs. That is to say they claimed that they could restrict reselling and own copying since the CD owner did not own the music. This did not hold up, while the owner of the CD does not own the right to reproduce it for any reason, they do, explicitly, regardless of any license on the CD, own the copy they purchased.

Whether or not the possibly fallacious idea of "If you do not accept the EULA you can return it for a full refund" would negate that principle is another issue. If it does not, then there is little to no legal backing to the idea that EULA's are binding in the sense that the individual does not own the copy they purcahsed.

And if that is the case, then freeshards(or pay shards), which are explicitly legal if they do not contain copyrighted information and do not use a Blizzard trademark (since they neither violate copyright or trademark law, and patent law would not protect them from competition due to method differences even if it did apply).

So what could cause such a result from this case?

A: They really did copy Blizzard.

B: Blizzard brought information relating to it and no one on the other side showed up to show how that information was false(how in the world would the judge be able to evaluate it?)

_________________

With regards to the size of the damages. Punitive damages are supposed to be relative to the financial status of the organization or individual who has violated. The idea is that the amount can be set to a level that is painful for any person or organization. If there was an appeal (which i doubt, since the defendant didn't even show up) it is likely to be reduced severely once the financial status of the defendant is made more clear as the punishment would likely violate the "excessive fines", or "cruel" section of the 8th Amendment.

[robusticus]

I saw Predators in the cinema but even though I've paid for it I don't have the right to download it off the internet.

Maybe not exactly that but I think you do have that right via the first sale doctrine.

These laws were created for other types of media and are difficult to apply to application service providers, much less MMOs.

I do not think anybody is disputing that wholesale copying has occurred.  I certainly wouldn't as a defense.  Either that or a really nice job of reverse engineering, which amounts to the same thing. 

The question is further downstream.  This particular private server, and most private servers, are built to cater to a wholly different market than the official servers do.  The potential that Blizzard has to bring servers to serve this other market actually sways this case in their favor, ironically.

[Numtini]

Maybe if it's a real business getting sued, and not some WoW scammers. In this case I think the pertinent question is, does this punishment make it impossible for them to ever become productive members of society again. In Finland getting slapped with a such damages would mean, and has meant, that the person is never again able to achieve a reasonable living standard as a law abiding citizen, thanks to income garnishmet or whatever it's called. Making them in effect either permanent welfare recipients or career criminals.

If you have 3 million in income and 427,000 customers, then you're a real business.

Also, they will likely declare bankruptcy and discharge the debt. There would be consequences, but they did effectively make 3 million dollars from stealing someone elses work.

[Goumindong]

Re: "I saw Predator's in theaters..."

False Analogy. The proper one is "I purcahsed the disk to the movie Predator, what do you mean I can only watch it once and only watch it at my house?"

I.E. With WoW and with a disk, the parent company is creating a copy for you. They are not simply allowing you to access a copy. When you take control of that copy, either via download, or via disk, you own that copy via first sale doctrine. (I.E. if the parent company cannot prohibit you from reselling it they can also not forcefully remove the copy from your possession).*

Note: The ability to resell does not imply the ability to connect to the servers. This is probably the main reason that game companies create gated access multiplayer(I.E. MMO's and Steam). It gives them the ability to diminish (in part or in full) the value of a resale copy

*Note: Steam gets away with this because the copies that they create are hard limited to be played when connected to the internet through Steam. Though i would be willing to bet that if you did sue you would obtain the right to resell the game. Though i doubt Valve would be required to honor such sale and they would not be required to use any of their bandwidth to facilitate the transfer.

RE: "Can these people be productive members of society again?"

It depends on whether or not the company was an LLC or sole proprietorship and how the judgment is assigned to the two parties to the case. It also depends on how lenient the bankruptcy courts are with regards to court imposed debts. I doubt the company was created as an LLC as that may shield the owner from original litigation. (I.E. Blizzard would be able to sue the the company, but not the owner or CEO of the company, which makes the specific name of the person sued unlikely to be in the court documents, which it is.). I don't know enough about court imposed debts and bankruptcy law of California (where I assume this person is located, since, iirc Texas would have been a better location to sue in terms of winning copyright cases) to comment on whether or not this person is totally screwed(in debt for more or less the rest of their life) or just kinda screwed(has the totality of their assets wiped out)

Best case scenario for the owner is that the company and only the company is entirely wiped out. Dividends and income payed by the company are not recoverable. Worst case is that the owner has their entire asset base wiped out including their home and is in debt for the rest of their life.

[Trippy]

If, as "Dark_MadMax" claimed there was no copyrighted code on the server,  then there is no liability on the part of the server owners.  EULA violations are not copyright violations and do not require bypassing copyright protection methods. This means that there is no copyright violation(nothing was copied) or DMCA violations. All violations are violations of the EULA contract and the most damage that can be done is that the contract is revoked by Blizzard for the person who connects.

Wrong wrong wrong and wrong (I think I got them all).

http://en.wikipedia.org/wiki/Bnetd

[Goumindong]

Wrong wrong wrong and wrong (I think I got them all).

http://en.wikipedia.org/wiki/Bnetd

You didn't read that, or the case did you?

1) That only holds in California(since the relevant law is California copyright law) if the creators of the server accept the EULA that says that they will not reverse engineer the product. (specifically a section of the relevant State Law must protect the rights of the copyright holders from having their product reverse engineered for specific purpose which covers the purposes that the violation is broken for, as a general protection would be preempting the Federal law which grants that explicit right)

2) That they indeed do reverse engineer the product

3) The status of the clients is indeed irrelevant to the issue.

4) None of the work provides access to a copyrighted work. (I.E. this does not allow people to make new copies or use unauthorized copies).  The court found in the BNetD case(incorrectly too, since you can get a CDkey by way of purchase in the same way you can get a printer by purchase as in the relevant case cited) that there must be a non-freely accessible authentication method.

WoW does not use a CD key to authenticate the game. Rather it uses an account. (The fact that you need a CD key to make an account is irrelevant since anyone can check with Blizzard to ensure an account exists)

5) The main problem with BNetD was trademark infringement and not copyright. So long as they do not claim to be Blizzard or sufficiently wipe the server of trademarks(which should not be difficult) they're pretty clear.


This doesn't even get into the issues of material or commercial difference (I.E. are the free servers significantly different than the original? if they are then its not a violation) or fair use(though such a defense would probably require significant changes to the game which would void the DMCA violation).

[Trippy]

Wrong wrong wrong and wrong (I think I got them all).
http://en.wikipedia.org/wiki/Bnetd

You didn't read that, or the case did you?

I did but apparently you didn't.

1) That only holds in California(since the relevant law is California copyright law) if the creators of the server accept the EULA that says that they will not reverse engineer the product. (specifically a section of the relevant State Law must protect the rights of the copyright holders from having their product reverse engineered for specific purpose which covers the purposes that the violation is broken for, as a general protection would be preempting the Federal law which grants that explicit right)

Wrong. The BnetD case was filed in a *District* court. It had nothing to do with state law.

For the rest of the stuff I'll just quote the EFF's summation of the case:

Outcome: The reverse engineering and emulating of the Blizzard software violated the anticircumvention provisions of the DMCA. This ruling has been widely criticized as making it impossible to create new programs that interoperate with older ones and squeezing consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own.

[Goumindong]

Wrong. The BnetD case was filed in a *District* court. It had nothing to do with state law.

And the *District* court upheld the ruling because they said that the *federal* statute did not overrule the state statute whereas in other situations it did such as a Louisiana case

As for the EFFs summary, the court said that it was a violation specifically because it was not a competing service but a copied service.

[Trippy]

I'm not even sure what point you are trying to make anymore.

If you read the final judgment in this case the statutory damages were calculated by estimating the number of violations of DMCA Section 1201 -- i.e. the number of times anti-circumvention products or services were provided by the defendant. In other words this case *is* about copyrights not EULAs.