Terms of Use violation = copyright infringement in WOW case:
Blizzard has won its summary judgment motion against World of Warcraft bot maker MDY on copyright grounds. Blizzard also prevailed on its tortious interference claim. This means that liability for contributory and vicarious copyright infringement and tortious interference is completely off the table and will not go to the jury at trial in September, assuming that the parties do not settle before then. The only issue before the jury on these two claims will be damages. This is a major setback for MDY, which originally brought this action seeking a declaratory judgment that its WowGlider (now MMOGlider) bot software did not infringe Blizzard’s copyright.
The Court ultimately held that:
Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.
This is a scary ruling for three reasons:
- Terms of Use become a very powerful contracts for software makers if software companies get copyright damages for breaches… up to $150K per infringement
- This ruling is one more hit against a first sale doctrine with regards to software (although this issue appears not to have been fully litigated)
Read more:
Virtually Blind