Hyman Rosen wrote: [...] > copyright infringement is a possible result of license violation. > It is the nature of the license violations that determine this.
Hyman, Blizzard argued exactly that way. And lost. http://iplaw.hllaw.com/2010/12/articles/copyright/ninth-circuit-concludes-that-violation-of-wow-tou-did-not-give-rise-to-copyright-infringement-claim/ "As to Blizzard's copyright claims, the District Court summed up the allegations concisely: Blizzard alleges that users of WoW are licensees who are permitted to copy the copyrighted game client software only in conformance with the EULA and TOU, and that when users launch WoW using Glider, they exceed the license in the EULA and TOU and create infringing copies of the game client software. . . . MDY is liable for contributory copyright infringement, Blizzard claims, because it materially contributes to this direct infringement by Glider users. MDY allegedly does so by developing and selling Glider with the knowledge that Glider users will create infringing copies. . . . MDY is liable for vicarious copyright infringement, Blizzard asserts, because it has the ability to stop the Glider-caused infringing activity and derives a financial benefit from that activity. In defense, MDY argued that Glider users do not infringe Blizzard's copyright; rather, MDY argued that if users violate terms of the EULA and TOU, they are merely breaching a contract, not infringing a copyright. The District Court first re-stated established Ninth Circuit law that copying software to RAM constitutes copying under the Copyright Act. As a result, if a person is not authorized by the copyright holder (through a license) or by law (through section 117 [of the Copyright Act]) to copy the software to RAM, the person is guilty of copyright infringement because the person has exercised a right (copying) that belongs exclusively to the copyright holder. MDY argued that Glider users are licensed to copy the WoW game client software to RAM, which license they acquired by purchasing and loading the software onto their computers. But MDY asserted that provisions of the EULA and TOU that contain prohibitions such as the prohibition against use of bots are merely contractual terms not limitations on the scope of the license granted by Blizzard. As a result, MDY argued that although Blizzard may have breach of contract claims against Glider users, it did not have copyright infringement claims. The District Court disagreed in large part with MDY, concluding that the EULA granted a limited license to WoW players and that, read together, the EULA and TOU provided limits on the scope of the license granted by Blizzard. Thus WoW players who use Glider acted outside the scope of the limited license and therefore [c]opying the game client software to RAM while engaged in this unauthorized activity constitutes copyright infringement. . . . . The Ninth Circuit's Decision. . . . . As to the copyright infringement claims (alleging contributory and vicarious infringement), the Ninth Circuit first addressed the "essential step" defense of 17 U.S.C. 117(a)(1) and the question of whether WoW players are owners or licensees of the copies of the WoW software in their possession. Relying on its decision in Vernor, the Ninth Circuit concluded that WoW players are merely licensees of their copies of the WoW software and therefore neither they nor MDY were entitled to the "essential step" defense. As a result, "when their computers copy WoW software into RAM, the players may infringe unless their usage is within the scope of Blizzard's limited license." The Ninth Circuit thus turned to an examination of the relevant portions of Blizzard's license (the TOU), namely, the portion prohibiting bots and unauthorized third-party software, to determine whether they were "conditions," the breach of which constitute copyright infringement, or "covenants," the breach of which give rise to only contract claims. The Ninth Circuit concluded that the provisions of the license at issue were covenants, the breach of which did not give rise to copyright infringement claims. Essentially, the Ninth Circuit concluded that the breach of a license agreement must implicate one of the exclusive rights of copyright to give rise to a copyright infringement claim: "[W]e have held that the potential for infringement exists only where the licensee's action (1) exceeds the license's scope (2) in a manner that implicates one of the licensor's exclusive statutory rights."" regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
