Blizzard goes lawsuit happy

[sinij]

Just read following on slashdot:

In the overlooked case between Blizzard and MDY Industries, the creator of the WoWGlider bot, Blizzard is arguing that using any programs in conjunction with the World of Warcraft constitutes copyright violation. Apparently accessing the copy of the game client in RAM using another program infringes upon their rights. Under that logic, users do not even have the right to use anti-virus software in the event that the game becomes infected. Furthermore, Blizzard's legal filings downplay the role of their Warden software, which actively scans users' RAM, CPU, and storage devices (and potentially sensitive data) and sends information back to Blizzard to be processed

Not a good thing to set as a precedent.

[Simond]

That looks like FUD-inspired handwavery by the cheater's lawyers to me - "ZOMG Blizzard doesn't want you to use anti-virus software!!!"

[sinij]

This is more basic - are you, as a user in control, or have the right to, of your computer or not? Blizzard wants to tell us that manipulating memory contents on our own machine violates copyright.

[Dren]

This is more basic - are you, as a user in control, or have the right to, of your computer or not? Blizzard wants to tell us that manipulating memory contents on our own machine violates copyright.

It is, if you intend on interacting with their servers on their own machines.  If you plan to change the program and then never log into their servers, do it all you want.  You have that right.

[bhodi]

It is, if you intend on interacting with their servers on their own machines.  If you plan to change the program and then never log into their servers, do it all you want.  You have that right.

Uh, no, sorry. this is COPYRIGHT we are talking about. Interaction with their servers has absolutely nothing to do with it.

[ajax34i]

My opinion is that yes, you are in control of your computer and have the right to control of your computer.  You can uninstall the game whenever you start disagreeing with their terms of use.  When you play the game, you're voluntarily giving up your right.  The only thing I would want Blizzard to do would be to publicize exactly what Warden is doing to my system, so I can actually make an informed decision about whether I want to run the piece of spyware that is their game, or not.  Can file permissions and application-level blocking be used to prevent Blizzard's executables from accessing sensitive parts of the hard drive?

[Dren]

It is, if you intend on interacting with their servers on their own machines.  If you plan to change the program and then never log into their servers, do it all you want.  You have that right.

Uh, no, sorry. this is COPYRIGHT we are talking about. Interaction with their servers has absolutely nothing to do with it.

So it is ok to mess with THEIR computers?

[tazelbain]

It is, if you intend on interacting with their servers on their own machines.  If you plan to change the program and then never log into their servers, do it all you want.  You have that right.

Uh, no, sorry. this is COPYRIGHT we are talking about. Interaction with their servers has absolutely nothing to do with it.

So it is ok to mess with THEIR computers?

You are still messing with your computer, if they are stupid enough to make their computer obey yours, that's their fault.

[Dren]

So I guess you guys are supportive of haxxors and sploits now.  Gotcha.

If you want to concentrate on the Copyright portion of this, fine.  If you are going to change their program on your computer, then you need to change all other aspects that identify it as a Blizzard product, or Warcraft.  To do otherwise, is misrepresenting their Copyright.  So, no you don't have a right to changing their program on your computer if you plan to represent it as theirs.

[sinij]

You fail to realize consequences of this lawsuit outside of stopping some bots.

[Samwise]

I would think that this would be more of a EULA issue than a copyright issue.  I'm perfectly fine with companies putting whatever the hell they want in their EULA.  If it's unreasonable, people won't buy their software.  It works out nicely.

(edit) Of course, sinij conveniently failed to link to the original article, so I can't tell if this is actually what it sounds like from that little snippet, or if that's just some Slashdotter using words wrong.

[sinij]

http://www.theimageplace.net/uploads/7b600767fb.pdf

[Kail]

You fail to realize consequences of this lawsuit outside of stopping some bots.

Yeah, I do, because I'm not a lawyer.  All I see is one side is saying, "EULA is law!  Blizzard must win, for the good of the industry!" and the other saying "If Blizzard wins this, ALL COMPUTERS EVERYWHERE WILL BECOME THEIR UNHOLY THRALLS!"  I mean, I'm no expert, but I'd suspect that at the end of the day, not much is going to change.  Big companies will continue to claim that we don't own the software on our computers, average gamers like me will kvetch about it a bit but not really do anything.

[sinij]

No there won't be immediate and drastic changes but you will see eventual end of third-party software and a lot more of hijacking of your computers because its dangerous to stop it due to this precedent. IANAL and I see a lot of downsides to what Blizzard is doing, I'm sure layers will be able to point out more.

Fortunately its will be only US precedent, so rest of the world will be relatively safe and more companies will move headquarters out of US not to have to deal with it.

[Samwise]

http://www.theimageplace.net/uploads/7b600767fb.pdf

Danke. 

As I read it, this has very little to do with copyright, and the Slashdotter was, as I suspected, using words wrong.  There's a tangential connection in that the DMCA prohibits the circumvention of copy protection mechanisms, and WoWGlider has to do that to perform its dirty deed, but it's not for the purpose of actually making copies so that part's pretty thin.  The meat of the case is EULA/TOU infringement, and as far as that goes I think Blizzard is on pretty firm ground.  If you agree to a contract before you start playing a game, you should abide by it, or get the fuck out.  And if you decide to make your living by helping other people violate that agreement and in so doing cause financial harm to the company on the other end of it, expect them to string your ass up.

[sinij]

As far as I understand EULA/TOU is only binds current users and only as far as use of the product. You bot, you get banned and thats it. You can bot/write bots/sell bots all you want and Blizzard can ban you all they want.

[Dren]

As far as I understand EULA/TOU is only binds current users and only as far as use of the product. You bot, you get banned and thats it. You can bot/write bots/sell bots all you want and Blizzard can ban you all they want.

That's correct up to the point that they charged money for their program.  They were making money off of a program that they did not own or operate.  They were using the Warcraft name and programming to make money without paying Blizzard their due.  The bot program is nothing without WoW yet they did nothing to tip their hat to WoW. 

If they are going to use their name to make money, they have to abide by Copyright law.  If they hadn't charged money, Blizzard would have a much harder case in my opinion.  Although, I still have issues with people creating software that allows other people to break EULA.  It may not be against the law, but it's still wrong.

The Warden issue is completely separate from this.  There certainly is an argument there, but it is being used as a Red Herring in this case.

[Paelos]

I've looked at the case, and honestly Blizzard is just piling on the copywrite crap to sell the main issue, which is the fact that WoWGlider made money during a tortious interference of a contract. WoWGlider's entire defense to that notion is:

"Although MDY was aware of the terms in the defendants agreements prohibiting interaction between World of Warcraft and third-party software, MDY alleges that these terms were overreaching and unenforceable due to copyright misuse. The unenforceability of the EULA and TOU in addition to MDYs desire to earn profits without motive to interfere with the defendants contracts justifies MDYs actions."

Yeeeeeah, that's like saying, "You made up too many rules so we broke them. PS, fuck you." I have news for that, they could obviously enforce their EULA and TOU or you would have never been caught, nor would thousands have people been banned for using the program which DAMAGED them by losing an active account and key. Oh, and the fact that they acknowledge that the program goes out of the way to avoid Warden just adds fuel to the fire. They are really nailed on this point, I believe.

Just to clarify a little Tortious interference occurs "where the tortfeasor convinces a party to breach the contract against the plaintiff, or where the tortfeasor disrupts the ability of one party to perform his obligations under the contract, thereby preventing the plaintiff from receiving the performance promised." By definition this sounds exactly like what the program does. It gets users to break their contract with Blizzard by the promise of letting them advance 24 hours a day, on top of which they recieved payment by helping users break said contract.

[tazelbain]

But EULA aren't contracts.

[El Gallo]

EULAs are contracts.  That's how Blizzard won the BNET D case.  Check out page 14-15 of the appeals court decision http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf

Appellants contractually accepted restrictions on their ability to reverse
engineer by their agreement to the terms of the TOU and EULA. "[P]rivate parties are
free to contractually forego the limited ability to reverse engineer a software product
under the exemptions of the Copyright Act[,]" Bowers v. Baystate Techs, Inc., 320
F.3d 1317, 1325–26 (Fed. Cir. 2003), and "a state can permit parties to contract away
a fair use defense or to agree not to engage in uses of copyrighted material that are
permitted by the copyright law if the contract is freely negotiated." Id. at 1337 (Dyk,
J., dissenting). See also Nat'l Car Rental Sys., Inc., 991 F.2d at 434 (holding that the
Copyright Act does not preempt a breach of contract action based on prohibited use
of software contained in a license agreement). While Bowers and Nat'l Car Rental
-15-
were express preemption cases rather than conflict preemption, their reasoning
applies here with equal force. By signing the TOUs and EULAs, Appellants expressly
relinquished their rights to reverse engineer. Summary judgment on this issue was
properly granted in favor of Blizzard and Vivendi.

(emphasis added)
In any event, there is a seperate tort for interference with business relations where no contracts are involvesd

FYI, earlier thread on this lawsuit: http://forums.f13.net/index.php?topic=9439.0

[tazelbain]

Great.  Fine.  Why does my bank need me to sign stuff again?  Since clicking some button is all that is really needed.

[Murgos]

Eh, trying to assert that changing the value of some bits of memory on your computer violates copyright is a little silly.  By that logic every time a program seg faults Microsoft can sue you.

What's next?  Outlaw memcpy() because it enables DRM avoidance?

People always use the analogy that the virtual memory manager is like a traffic cop, I guess he just got promoted and is now the FBI too.

[Paelos]

Eh, trying to assert that changing the value of some bits of memory on your computer violates copyright is a little silly.  By that logic every time a program seg faults Microsoft can sue you.

What's next?  Outlaw memcpy() because it enables DRM avoidance?

People always use the analogy that the virtual memory manager is like a traffic cop, I guess he just got promoted and is now the FBI too.

Yes, it is silly, and Blizzard will lose that part. They are just throwing a bunch of crap at the wall to see what sticks.

[SnakeCharmer]

Great.  Fine.  Why does my bank need me to sign stuff again?  Since clicking some button is all that is really needed.

You can transfer money and pay bills with just a mouse click.  Hell, you can open checking accounts with Bank of America online with no signature.  Look at Paypal.

There's a law (I think?) that gives an electronic signature (whether that electronic signature is a simple "I agree" or a maze of click boxes) the same power as a physical one.  

[Murgos]

EULAs are contracts.  That's how Blizzard won the BNET D case.  Check out page 14-15 of the appeals court decision http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf

For the sake of argument lets say I buy a copy of WoW and NEVER install it on any computer using the installer and never execute it's code on my system and thus never agree to the EULA.  Instead I read some of the bits off the CD with an electron microscope and then proceed to reverse engineer the software until I determine how to write a program that will change some bits to a certain value at a specific memory address under certain conditions.

Did I just violate the EULA?  If so, how?  I never agreed to it in any way shape or form and never used their software.  Am I beholden to the EULA simply because I purchased the software even though there is no possible way I could have known what was in the EULA?

How is that a contract?

Let's go a step further with this, lets say I write a program that writes random values of WASD into the keyboard buffer and I have never heard of WOW in my life.  If I sell this program to someone else and they execute it not knowing what it does but it happens to queue up the equivalent of pressing wasdwsasdwsa did someone just violate the EULA?

How?  The keyboard was circumvented but no one ever interfered in any way with the functioning of WoW, it was never even interfaced with in a way it didn't expect and wasn't deigned to do.  What if I use a bobbing bird head to peck at keys on the key board in a predetermined manner?

I contend that uneducated people should stop being allowed to make technical arguments.

[Paelos]

EULAs are contracts.  That's how Blizzard won the BNET D case.  Check out page 14-15 of the appeals court decision http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/20050901_decision.pdf

For the sake of argument lets say I buy a copy of WoW and NEVER install it on any computer using the installer and never execute it's code on my system and thus never agree to the EULA.  Instead I read some of the bits off the CD with an electron microscope and then proceed to reverse engineer the software until I determine how to write a program that will change some bits to a certain value at a specific memory address under certain conditions.

Did I just violate the EULA?  If so, how?  I never agreed to it in any way shape or form and never used their software.  Am I beholden to the EULA simply because I purchased the software even though there is no possible way I could have known what was in the EULA?

How is that a contract?

Let's go a step further with this, lets say I write a program that writes random values of WASD into the keyboard buffer and I have never heard of WOW in my life.  If I sell this program to someone else and they execute it not knowing what it does but it happens to queue up the equivalent of pressing wasdwsasdwsa did someone just violate the EULA?

How?  The keyboard was circumvented but no one ever interfered in any way with the functioning of WoW, it was never even interfaced with in a way it didn't expect and wasn't deigned to do.  What if I use a bobbing bird head to peck at keys on the key board in a predetermined manner?

I contend that uneducated people should stop being allowed to make technical arguments.

The answer on both cases is no, and you know it. Still it's not what happened in this case at all and this isn't about some kind of crazy slippery slope. The dude made a program called WOWGlider, notice the WoW, knew all about the EULA and basically just said fuck it, and then sold the shit off. Uneducated or not, you're ignoring those facts.

[caladein]

The WoWGlider case is completely different in a million ways, yes, but there's still something to be said about the second example:

The player, not the creator of the bobbing bird, is fried simply because the EULA doesn't allow for mechanical circumvention as well (the keyboard example is the same since you're feeding random stuff into the buffer). Blizzard can't do anything to you since as you said, "I didn't agree to an EULA/ToU" but the player outright broke that EULA/ToS by using your product.

Again (and again), there is no slippery slope here: it's just another amazingly sensationalist Slashdot summary.

[El Gallo]

For the sake of argument lets say I buy a copy of WoW and NEVER install it on any computer using the installer and never execute it's code on my system and thus never agree to the EULA.  Instead I read some of the bits off the CD with an electron microscope and then proceed to reverse engineer the software until I determine how to write a program that will change some bits to a certain value at a specific memory address under certain conditions.

Did I just violate the EULA?  If so, how?  I never agreed to it in any way shape or form and never used their software.  Am I beholden to the EULA simply because I purchased the software even though there is no possible way I could have known what was in the EULA?

How is that a contract?

I have no idea.  We'd need a lot more detail to know.  From what you wrote, it doesn't seem true that "there is no possible way I could have known what was in the EULA" because all you had to do was stick the CD into a disc drive and click play (or perhaps read the bits on your electron microscope).  Intentionally making yourself (at least superficially)y ignorant is generally not going to excuse you in cases like this, but if you just rolled into Best Buy from a planet where EULAs don't exist and people buy CDs in order to look at them with electron microscopes, you might win.  In reality, it sounds like you bent over backwards to give yourself a formalistic argument to defend against a knowing contract breach but if you want to go that way feel free to try and convince 12 random dudes off the street who aren't smart enough to avoid jury duty that you weren't. 

I don't think this hypothetical is helpful to understanding why and whether real-world EULAs are enforceable but I may be missing something.  Sure, there are some circumstances where EULAs aren't enforceable contracts (for example, if they had unconscionable terms ["I agree to name my firstborn Thrall"], if you agreed to them under duress ["Click ACCEPT or this disc will fry your computer"], probably if the customer could not return the product for a refund before reading it).  That doesn't mean they are all unenforceable.

Let's go a step further with this, lets say I write a program that writes random values of WASD into the keyboard buffer and I have never heard of WOW in my life.  If I sell this program to someone else and they execute it not knowing what it does but it happens to queue up the equivalent of pressing wasdwsasdwsa did someone just violate the EULA?

How?  The keyboard was circumvented but no one ever interfered in any way with the functioning of WoW, it was never even interfaced with in a way it didn't expect and wasn't deigned to do.  What if I use a bobbing bird head to peck at keys on the key board in a predetermined manner?

None of this stuff seems to be relevant to whether EULAs or any particular EULA are contracts, they are questions of the meaning of a particular EULA.  I have no idea if the customer violated the WOW EULA in the first hypo (accidentally activating a random key presser program), not having read the EULA closely.  It may well be a (presumably minor) breach.  In the second (bobbing bird pecking keys in a predetermined order) it may well violate the EULA since it's hard to distinguish that from any other unattended macro program. 

More to the point, however, it doesn't look like you (the guy who sold the wasdwsasdwsa program) tortiously interfered with Blizzard's contract with that customer, since you aren't intending to induce a breach.  Unlike the "HEY, YOU! WANT TO BREACH YOUR WOW EULA?  GIVE ME TWENTY BUCKS AND I'LL GIVE YOU A PROGRAM TO BREAK YOUR EULA FOR DA PHAT LEWTZ" guy.

edit: tangent snipped due to clarification

[Murgos]

My next point, if I really cared enough to make one, would be to diagram the transfer of data from a keyboard buffer to a cpu register and ask you to tell me at which point it became infringement (it wouldn't) and then digram the data flow from WOWGlider's memory space to a CPU register and again ask at what point it became infringement.  I'm pretty sure no one would be able to tell the difference, or the difference from my first example doing the same thing.

The only reason people don't see it as a slippery slope is that they don't see that mechanically it is identical.

You cannot have two identical and indistinguishable behaviors and say this is illegal but that is ok.  NM, actually, on second thought we do it all the time.

edit: I wasn't referring to anyone here as uneducated, merely the courts and that mostly as unwilling to be educated.

[Merusk]

You cannot have two identical and indistinguishable behaviors and say this is illegal but that is ok.  NM, actually, on second thought we do it all the time.

Yes, yes we do.  Which is why Law uses juries and such rather than binary protocols.  If law were a black and white issue, lawyers would be less populous and far, far cheaper.

[Paelos]

The only reason people don't see it as a slippery slope is that they don't see that mechanically it is identical.

No, the reason we don't is that intent plays a big part in these laws. The slope isn't slippery because law really doesn't give two shits about the mechanics of the situation (identical or not), they care about the spirit and intent of the use as well as the end result.

In your example, the reason WoWGlider is getting nailed is because they intended to gain monetary profits by knowingly helping users break a contract with the developer. What they dispute is the effectiveness of the EULA itself, not that they broke it. IMO, that's a pretty stupid argument since EULAs have already been upheld in previous cases, and I expect them to lose. The mechanics don't mean shit here.

[Dren]

I contend that uneducated people should stop being allowed to make technical arguments.

You made a completely unrelated far fetched comparison and then called us all stupid.  Great argument.

You seem to be concerned that this one judgement might destroy all 3rd party developers everywhere!!!

I contend it will.  The ones that purposely "do their own thing" regardless of what the host program creators want.  To me, that's just fine.  If you're going to develop programs to work with a program, you need to pay your respects to the creators of that program.  That's the right thing to do.  To do otherwise is to be a parasite.

[Azazel]

As a total layman, what seems to me to be the biggest flaw in their EULA is that it comes up once per patch, and is agreed to before the player (any player) puts in their username/password. After someone agrees to the EULA, anyone else may log on to an account on that machine.

To clarify with a real-world example. My wife plays WoW with me, though she is many degrees more casual. I'm the one who did the initial install on her machine, and I'm the one who takes care of all of the patching. Because of this, I don't think that she's ever clicked on a Blizzard/WoW EULA.

If you had to agree to that EULA after logging in, then I could see it a bit differently.

[LK]

And if you logged in to your game, then switched users?

Tricky tricky.

[CmdrSlack]

El Gallo is 100% right.

So, adopting his stuff, here's how it currently works for one other issue raised in the thread.

"Apparently loading the software into sytem RAM is infringing"
-- Absolutely it is.  Well, at very least it's a copy for purposes of the Copyright Act.  I don't have the exact cite handy, but there's existing precedent (that some consider to be the real genesis of/need for EULAs.  Yes, it's an asnine decision, and I don't really buy the logic that a copy in RAM is sufficiently fixed for purposes of being a fixation of copyrigt protected material, but hey, I don't have a cushy lifetime appointment to the Federal bench.  Basically, loading stuff into RAM creates a copy for purposes of the Copyright Act.  That copy, when created, technically infinges.

ETA -- The case referenced above was Peak Computer v. MAI Systems Corp.  It was a SCOTUS decision and the cite is 510 U.S. 1033 (1994) if you want to look it up.