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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 10 / 12





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  • 4.

    Thus using software while breaching conditions would constitute use outside scope of license and so copyright infringement.

    • C.

      MDY Indus., LLC v. Blizzard Entm't, Inc., 2008 U.S. Dist. LEXIS 53988, 89

    • U.

      S.P.Q.2D (BNA) 1015 (D. Ariz. 2008)

  • 1.

    Blizzard’s World of War software consists of “game client” software, purchased at store by user or downloaded from website, and “game server” software. After loading game client software on personal computer, user accesses the game server software through an online account for which he pays a monthly fee. Use of WoW is governed by EULA and TOU agreement, both shown when game client software is loaded and before online access. MDY’s Glider software is a “bot” that plays WoW for its owner while the owner is away from his computer and thereby enables the owner to advance more quickly within WoW than would otherwise be possible.

  • 2.

    EULA grants “limited use license” to install game client software on one or more computers and use it in conjunction with online portion of game for non-commercial entertainment, says that use of game client subject to EULA and TOU. TOU § 4 titled “Limitations on Your Use of the Service.” TOU § 5 titled “Rules of Conduct.”

    • a.

      TOU § 4 prohibits, inter alia, users from intercepting, emulating, or redirecting the proprietary components of the game, from modifying files that are part of the game, from disrupting the game or others players’ use of the game, and reserves Blizzard's exclusive right under § 106 to create derivative works.

  • 3.

    Court held that EULA, which says that users are bound by EULA and TOU, and TOU must be read together. TOU § 4 establishes limits on scope of license, and TOU § 5 contains independent contract terms

  • 4.

    Court found that users of Glider violate prohibition in § 4 against use of “bots” or any “third-party software designed to modify the [WoW] experience [.]”and that players who use Glider to mine WoW for game assets also violate § 4. “When WoW users employ Glider, therefore, they act outside the scope of the license delineated in section 4 of the TOU. Copying the game client software to RAM while engaged in this unauthorized activity constitutes copyright infringement.”

  • 5.

    Court rejects reading of Storage Technology under which act that takes someone outside scope of license must be same act that constitutes copyright infringement. Moreover, here it is the same act: the act of using Glider, which involves copying the game client software to RAM.

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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010

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