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The Courts Government Software News Your Rights Online

Who Owns Software? 531

SeeSp0tRun writes to remind us of Blizzard's lawsuit against MDY Industries over the Glider cheat. It seems that Blizzard is pushing it even further. They're trying out the legal theory that a software creator retains complete control over how a program is used, meaning that anyone who uses it in a different way could be found guilty of copyright infringement, at $750 a pop. The EFF and Public Knowledge are among the organizations trying to assure that the court doesn't set a really bad precedent here.
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Who Owns Software?

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  • by Nom du Keyboard ( 633989 ) on Tuesday May 06, 2008 @02:48PM (#23315238)
    Blizzard is just pissed (American definition, not British pissed) because Glyder gets around The Warden. They hate it when that happens.

    They also hate it when you complete the game sooner rather than later because all that grinding earns them additional months of revenue from you, sucker!

  • Re:How it's used? (Score:3, Informative)

    by Beardo the Bearded ( 321478 ) on Tuesday May 06, 2008 @03:16PM (#23315600)
    That's normal.

    When you create a work, you also maintain and keep the moral rights to the work. That basically means that another person can't modify the work.

    You can not assign the moral rights to another person. You can waive them or enforce them. If you don't act to enforce your rights, then you give them up by your actions.

    There's an example where a sculptor created a flock of geese in a mall for decoration. For one Christmas season, the mall tied ribbons around the necks of the geese. The artist sued the mall and won, because it violated his moral rights to the work.

    IANAL. I just know the difference between copyrights, trademarks, patents, industrial design, and trade secrets.
  • Re:Does this mean (Score:5, Informative)

    by Zordak ( 123132 ) on Tuesday May 06, 2008 @03:16PM (#23315606) Homepage Journal

    That's a poor analogy. The screwdriver isn't copyrighted. The manufacturer isn't selling a "license" to the screwdriver or a "copy" of the screwdriver. He's selling you a screwdriver. The screwdriver has intrinsic value as an object. It's a chattel.

    In contrast, the physical media the game comes on has little intrinsic value. And to the extent that it does, nobody can complain about you using the install disc as a coaster. The real value is in the copy of the software, and many courts allow parties to contract around copyright (even things like fair use, or not copying things that are in the public domain). Lookup the ProCD case out of the Seventh Circuit. Not everybody agrees with it, but many courts have followed it. The question is tougher when it's a "click-wrap," but many courts will even uphold those. The fact pattern is not unique: A sells a copy of a work to B under a contractual license. B breaches the contract. A sues for copyright infringement, because B only received a copy under the terms of the license. When B breached, his license was invalid, so his rights to the copy are lost. A wins. If it didn't work like this, you could never license anything to anybody except under the existing copyright language. Meaning, for example, that the GPL would not be valid, nor would any software license. So based on precedent, this is not an absurd case.

    I'm not saying it has to be that way. Nimmer on Copyright is very critical of ProCD, and some courts have declined to follow it. Nimmer would prevent parties from contracting around some fundamental copyright policy. The problem with that approach is "fundamental policy" is very dependent on who's defining it. So many courts (probably a majority) just don't go there. They uphold the contract, period. If you don't like the result, really the only way to change it is to encourage Congress to pass a version of 17 U.S.C. 301 that expressly preempts some contractual provisions, but leaves the rest undisturbed.

    Disclaimer: I don't represent anybody here. This post is not legal advice. Don't rely on it for any reason.
  • Re:How it's used? (Score:2, Informative)

    by Dancindan84 ( 1056246 ) on Tuesday May 06, 2008 @03:30PM (#23315800)
    The solution is to do what they have been doing in the past: banning players for violating their Terms of Use.

    4. Limitations on Your Use of the Service.

    1. A. Only Blizzard or its licensees have the right to host the Game. You may not host or provide matchmaking services for the Game, or intercept, emulate or redirect the proprietary communication protocols used by Blizzard in connection with the Program, regardless of the method used to do so. Such prohibited methods may include, but are not limited to, protocol emulation, reverse engineering, modifying the Program, adding unauthorized components to the Program, or using a packet sniffer while the Program is running.
    2. B. You agree that you will not (i) modify or cause to be modified any files that are a part of the Program or the Service; (ii) create or use cheats, bots, "mods", and/or hacks, or any other third-party software designed to modify the World of Warcraft experience; or (iii) use any third-party software that intercepts, "mines", or otherwise collects information from or through the Program or the Service. Notwithstanding the foregoing, you may update the Program with authorized patches and updates distributed by Blizzard, and Blizzard may, at its sole and absolute discretion, allow the use of certain third party user interfaces.
    People using this program are violating the ToU that they agreed to when they signed up for blizzard's online service. As such:

    7. Blizzard's Absolute Right to Suspend, Terminate and/or Delete the Account. BLIZZARD MAY SUSPEND, TERMINATE, MODIFY, OR DELETE THE ACCOUNT AT ANY TIME WITH ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE. For purposes of explanation and not limitation, most account suspensions, terminations and/or deletions are the result of violations of this Terms of Use or the EULA.
    Obviously this is a pain for them as they have to develop methods of determining that the user is in violation, so they're trying to go after the company that developed the software. I think their case is shaky at best and I don't agree with them, but I understand why they're trying to do it.
  • Re:Obvious Value ! (Score:3, Informative)

    by DustyShadow ( 691635 ) on Tuesday May 06, 2008 @03:33PM (#23315852) Homepage
    The $750 is coming from statutory damages in the Copyright Act.

    In the United States, statutory damages are set out in Title 17, Section 504 of the U.S. Code. The basic level of damages is between $750 and $30,000 per work, at the discretion of the court.
    http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement [wikipedia.org]
  • Re:How it's used? (Score:5, Informative)

    by cHALiTO ( 101461 ) <elchalo&gmail,com> on Tuesday May 06, 2008 @03:34PM (#23315864) Homepage
    You've both got it all wrong. The problem is not the government saying how we can drive our own cars. That is analogue to the government telling how we can use copyrighted stuff, which it does (i.e.: DON'T REDISTRIBUTE IT WITHOUT PERMISSION).

    The problem here is that blizzard sells you the product, *then* wants to tell you how to use it.

    A more fitting analogy would be if Ford sold you a car, then told you "but you can't use it on highways, interstates or parking lots, and you must park it in a covered garage", which is BS, 'cause once you bought it it's YOUR car, and you can do whatever you want with it, as long as it doesn't break the law (over which Ford isn't supposed to have any say...).

    The worst they can do is refuse to service you or void your warranty if it was explicitly specified before you bought the car, but they can't tell you what to do with your own stuff.

    Now, if they're Renting you a car, or leasing it, that's another thing altogether, but then they should clearly advertise it as a rent, and not as a product you buy out of the shelf.

    And even when renting, that implies a whole lot of responsibilities from the vendor..

    This is all fucked up big time.
  • Re:How it's used? (Score:2, Informative)

    by VeNoM0619 ( 1058216 ) on Tuesday May 06, 2008 @03:48PM (#23316060)
    Sorry, maybe I wasn't explaining well enough. The reason Blizzard is pushing this is because of bots within their games. Their software was being altered/reverse engineered in some way to allow it to abuse their system/service. Now, they can keep banning players, but that can never stop someone from proxying, spoofing, etc.

    To put it in a simpler analogy. It's like they keep getting DDOSed (abuse of service), but they can't do anything about it. How would you like to be a company that has someone constantly trying to break your system (in this case finally succeeding). Don't say you can prevent everything, there's a reason why there's private networks.

    What's the best solution? Sue anyone who uses bots? The only way to stop bad people online seems to be through physical/legal actions right? What other solutions can you think of?

    All RPG online games are ruined by cheats/bots (name one that is popular and has no cheating/botting if you disagree), how can one possibly defend against it?

    I'm not in favor of this bill especially calling it copyright infringement, but feel there should be something similar (but heavily modified and reviewed)
  • Re:How it's used? (Score:3, Informative)

    by R2.0 ( 532027 ) on Tuesday May 06, 2008 @03:51PM (#23316084)
    "You would deny me the right to sell my copyright why?

    You would open me up to theft of my material until I personally could publish why?"

    No. You could not "sell" what is a statutory right. You could, however, LICENSE it. Authors do this all the time.

    I don't necessarily agree with the GP about individual ownership - it totally blows the concept of "work for hire" out of the water. But the time limits for corporations are definitely out of hand - if anything, they should be LESS than those for an individual.
  • by Chris Burke ( 6130 ) on Tuesday May 06, 2008 @03:52PM (#23316116) Homepage
    since the license is the only thing that grants permission to the copyrighted work

    Only thing that grants permission to what the copyrighted work?

    Use the copyrighted work? As in run the program? No, you need no permission whatsoever to do that. The only types of "use" copyright covers are public performances.

    Copy and distribute the copyrighted work? Yes, because that's something that copyright actually covers.

    Copy into memory for purposes of using the copyrighted work? No, because copyright law explicitly exempts copies made as a necessary part of using the work from being infringement.

    Using the generic "grants permission to the work" is completely wrong. Copyright law only prohibits certain things. It is not a blanket grant of rights to control every aspect of the copyrighted work. The copyright holder does not have to grant permission "to" the work; they have nothing to do with that. If you purchase a legally created copy of a book, you can give that book to me, and the copyright holder has no say. If I try to create a duplicate of the book and give it away without permission, that is a violation of copyright.

    GPL only attempts to grant things that are otherwise prohibited by copyright. EULAs try to prohibit things that are, otherwise, completely legal. The difference is huge.
  • by Haeleth ( 414428 ) on Tuesday May 06, 2008 @03:53PM (#23316128) Journal

    I'm going to pretend that the quoted characterization is accurate. If so, then this sound very much like the GPL. The are both licenses. If you fail to comply with the terms of the GPL you are violating a copyright since the license is the only thing that grants permission to the copyrighted work, and if you fail to comply with the terms of the EULA you are violating a copyright since the license is the only thing that grants permission to the copyrighted work.
    That's like saying that eating a burger is very much like eating a baby, because they're both meat.

    GPL advocates all agree, and indeed take great pains to emphasize, that the GPL only applies to distribution. Nobody, not even RMS himself, would dream of asserting that the GPL has any power whatsoever over what you choose to do with GPL'd software in the privacy of your own computer, or even within your own company; it's only if you start making copies to give to other people that the GPL kicks in.

    What Blizzard is claiming is completely different. They're claiming that their EULA means you aren't even allowed to run the program unless you comply with all their demands.
  • Re:WTF (Score:5, Informative)

    by Chris Burke ( 6130 ) on Tuesday May 06, 2008 @04:06PM (#23316350) Homepage

    Instead, Blizzard claims that any time a user runs WoW, the copy of the game (or the portions of it) that are copied into RAM are infringements. Or, at least, they would be, but for the generosity of Blizzard, which grants users a license to make these RAM copies.
    Utter fucking lunacy.
    Indeed, that is lunacy, because copies made as a necessary step in using the program (i.e. copying it from disk to ram) are explicitly exempted [copyright.gov] from being possible infringements. This isn't even "fair use", it is as the section header says a limitation on the exclusive rights of the copyright holder. They do not have the right to prevent such copies. Therefore they cannot grant permission to do this through their EULA, nor can performing this copy in violation of their EULA be a copyright violation.

    They're out on a limb here, and the wind is going to pick up shortly. Any EFF lawyer could argue this down in seconds.

    By the way, the next paragraph (b) also directly addresses the notion of selling a legally obtained copy of a copyrighted work. It directly and explicitly puts to pasture the idea that you need a company's (like MSFT's) permission to re-sell a singular copy of their software. At least from the standpoint of copyright.
  • by Chris Burke ( 6130 ) on Tuesday May 06, 2008 @04:19PM (#23316514) Homepage
    The copy on the hard drive is there subject to a license. RAM is unnecessarily confusing the issue.

    But the necessary copying from disk to RAM is the foundation of their whole argument!

    And once again you say in generic terms that a copy is "subject to a license" but you don't say for what. If you still aren't getting it, copyright is not a blanket statement that you can't do anything at all with a legally obtained copy of a work without permission. It grants specific rights to the copyright owner, and only certain actions violate that right.

    So until you start talking about performing an action that violates the copyright holders rights, then no the copy on the hard drive is not subject to needing a license to be in compliance with copyright law.

    Furthermore, the game downloads code at run-time after connecting. So violating the license at run-time applies as well.

    Is that a necessary step of using the software? Yes it is, and thus no it is not a copyright violation.
  • by Drakantus ( 226374 ) on Tuesday May 06, 2008 @04:43PM (#23316916)
    Your logic is wrong. When you purchase something, you get certain rights automatically. For example, when you purchase a book at Borders, you get the right to read it along with the book, even though there isn't a license agreement attached to the book that specifically spells out your right to read the book. When you download a piece of GPL software, you can run it and use it without ever agreeing to the actual GPL. You only become concerned with the GPL when you want to do something you can't already do under the software's copyright.
  • Re:License vs Copy (Score:2, Informative)

    by uncreativeslashnick ( 1130315 ) on Tuesday May 06, 2008 @04:45PM (#23316932)
    ProCD, Inc. v. Zeidenberg [wikipedia.org], 86 F.3d 1447 (7th Cir., 1996). I believe that is the principal case and often cited, and I don't believe the US Supreme Court has yet ruled on this issue.

    this link [jonesday.com] cited in the wikipedia article also provides some interesting discussion.

    See my additional post also, where I acknowledge a mistake in my above post. It is also important to note that this is still a bit of a nebulous area of the law, so the blizzard case could have far-reaching impacts.
  • Re:License vs Copy (Score:3, Informative)

    by Todd Knarr ( 15451 ) on Tuesday May 06, 2008 @04:55PM (#23317068) Homepage

    Why would there be such a difference? The Uniform Commercial Code doesn't indicate there's any difference in the terms of the default contract of sale. I didn't sign any other terms at the time of sale, so according to the UCC the default terms apply at that point. This "license" you talk about wasn't mentioned until after I got the software out of the box and started to install it. Why should some contract I was never offered and never accepted have anything to do with the terms under which I own my copy?

    I'd note in the case of WoW and the Glider software there's another catch. Whether or not there's any copyright infringement on the client side, to play WoW you have to connect to Blizzard's servers. To connect you have to accept the Terms of Service for those servers. Using Glider violates those terms. No need to bring copyright or ownership vs. licensing of the client software into it. Glider's sole purpose, known to and intended by it's author, is to induce Blizzard's customers to break the agreement they have to make every time they log in. That's tortious interference with contract, as I understand it.

  • by Zatoichi007 ( 910559 ) on Tuesday May 06, 2008 @05:30PM (#23317522) Homepage
    It is an INTERESTING response...almost word for word from the True Stella website. Now here's the rest of the facts (from True Stella) that you failed to include: #The resulting $640,000 isn't the end either. Liebeck and McDonald's entered into secret settlement negotiations rather than go to appeal. The amount of the settlement is not known -- it's secret! #The plaintiffs were apparently able to document 700 cases of burns from McDonald's coffee over 10 years, or 70 burns per year. But that doesn't take into account how many cups are sold without incident. A McDonald's consultant pointed out the 700 cases in 10 years represents just 1 injury per 24 million cups sold! For every injury, no matter how severe, 23,999,999 people managed to drink their coffee without any injury whatever. Isn't that proof that the coffee is not "unreasonably dangerous"? #Even in the eyes of an obviously sympathetic jury, Stella was judged to be 20 percent at fault -- she did, after all, spill the coffee into her lap all by herself. The car was stopped, so she presumably was not bumped to cause the spill. Indeed she chose to hold the coffee cup between her knees instead of any number of safer locations as she opened it. Should she have taken more responsibility for her own actions? And... # Here's the Kicker: Coffee is supposed to be served in the range of 185 degrees! The National Coffee Association recommends coffee be brewed at "between 195-205 degrees Fahrenheit for optimal extraction" and drunk "immediately". If not drunk immediately, it should be "maintained at 180-185 degrees Fahrenheit." (Source: NCAUSA.) SO YES...APPARENTLY, MOST PEOPLE APPARENTLY DO LIKE COFFEE THAT CAN GIVE THEM 3RD DREGREE BURNS Exactly what, then, did McDonald's do wrong? Did it exhibit "willful, wanton, reckless or malicious conduct" -- the standard in New Mexico for awarding punitive damages?
  • Re:Obvious answer! (Score:3, Informative)

    by pressman ( 182919 ) on Tuesday May 06, 2008 @05:59PM (#23317892) Homepage
    Premiere is really not a good example as:

    A) It's a piece of garbage compared to Final Cut
    B) Final Cut Express killed it with better features at a lower price point
    C) Adobe screwed themselves over in the Mac market by killing it and the bringing it back when Apple went to Intel
    D) Everyone was switching to Final Cut Pro anyway back in 2002 because even though it cost more, you could actually efficiently cut a feature length film in it
    E) Final Cut Pro (v3 on) actually imported and dealt with Adobe file formats better than Premiere did!

    Adobe would have been better off rolling the timeline editing aspects of Premiere into AfterEffects to create a true competitor to the Discreet (now Autodesk) line of applications rather than go toe to toe with Apple and Avid in straight up non-linear digital video editing.

    For my editing students who insist on working in a Windows world, I urge them to learn Avid over Premiere as Avid is still the industry heavyweight on both platforms in Hollywood and a far more robust editing platform to boot.

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