May 5, 2008 | By corynne mcsherry

Do You Own Your Software? WoW Glider Case Not Just About Getting to Level 70.

Unbeknownst to most software users, a lawsuit now at a critical stage could drastically expand the ability of software vendors to restrict how their customers can use their software.

Blizzard Entertainment, the company that makes the hugely popular massively multi-player online role-playing game World of Warcraft, sued Michael Donnelly, the developer of Glider, a program that helps WoW users raise their character level to 70 by “playing” for the user while the user goes to get a cup of coffee, read the paper, etc. The WoW licensing agreement ostensibly forbids using programs like Glider. Blizzard says that Donnelly illegally interfered with that agreement by selling Glider and, therefore, encouraging users to breach the license agreement by using the program.

Here’s the scary part: Blizzard also insists that because the license agreement forbids using Glider with WoW, Glider users are committing copyright infringement when they load copies of WoW into RAM in order to play the game. (Blizzard says Donnelly is contributing to that infringement.) If Blizzard’s theory were correct, Glider users could be on the hook for statutory damages, which could start at $750 per RAM copy. Blizzard’s theory would also give software vendors the power to stop the sale of software that interoperates with their product.

But Blizzard’s theory is wrong, because it confuses a copyright holder's intellectual property rights in the software it develops with a buyer's rights in the actual copy of the software. An owner of software has a right to copy it if that copy is essential to the customer’s use of the software. (See Section 117 of the Copyright Act.) This rule is a crucial part of the balance Congress crafted between the rights of the copyright holder to manage and benefit from its expressive work, and the rights of the public to innovate, recreate and otherwise use and build on that work.

Blizzard argues that players aren’t owners but merely software licensees, so section 117 doesn’t apply. But court after court has held that the question of whether a user is an owner for purposes of Section 117 depends the substance of the transaction, not just how one party wants to describe it. For example, if you buy the software, keep it on your own computer and don’t have to return it when you are done, you probably own it.

This is not to say that there might not be a contract, like the license agreement, that restricts use of the software. But violation of that agreement is a matter of contract law, not copyright, which means that different standards apply and there is no minimum statutory damages requirement.

Blizzard has filed for summary judgment on its claims. Given the facts of the case—Glider is, after all, a program that helps some folks cheat at WoW—there is a danger here that the court will lose sight of the implications of its ruling for all software users. Public Knowledge filed an amicus brief last week calling the court’s attention to those implications. We hope the court will take heed, and reject Blizzard’s absurd and overreaching copyright theory.


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