infringing copies of the game client software. Blizzard sought to hold the defendant
contributorily liable for those infringing copies.^2037
The district court agreed and granted Blizzard summary judgment against the defendant.
Citing the Ninth Circuit’s decision in MAI Sys. v. Peak Computer, Inc.,^2038 the court ruled that
copying of software to RAM constitutes “copying” for purposes of Section 106 of the Copyright
Act, and thus if a person is not authorized by the copyright holder through a license or by law
(e.g. Section 117) to copy the software to RAM, the person commits copyright infringement by
using the software in an unauthorized way.^2039 The court ruled that the provisions in the EULA
and the TOU prohibiting the use of bots and resale of game assets were limitations on the scope
of the license, not merely separate contractual covenants. The EULA stated the game client
software was distributed solely for use by authorized end users according to the terms of the
EULA, and the grant clause in the license was expressly conditioned as being subject to the end
user’s continuing compliance with the EULA. The license also made clear that, although users
were licensed to play WoW and to use the game client software while playing, they were not
licensed to exercise other rights of the copyright holder, such as distributing or modifying the
software, thus establishing that the provisions of the license were designed to protect Blizzard’s
copyright interests. Thus, when end users used bot software such as Glider to operate the WoW
game client software in violation of the EULA and TOU, they were making unauthorized copies
of the game client software, which infringed Blizzard’s copyright, and for which the defendant
was liable as a copyright infringer.^2040
The district court rejected the defendant’s argument that the copies of the game client
software made by end users while operating the Glider software were authorized by Section 117
of the copyright statute. The court noted that MAI and at least two other rulings by the Ninth
Circuit had held that licensees of a computer program do not “own” their copy and are therefore
not entitled to a Section 117 defense.^2041 In October of 2008, the court awarded Blizzard over $6
million in damages for copyright infringement.^2042
On appeal, the Ninth Circuit confirmed the district court’s ruling that WoW players were
licensees, not owners, of their copy of WoW’s game client software. Citing the standards for
determining status as a licensee versus an owner in its decision in Vernor v. Autodesk,^2043 the
Ninth Circuit noted that Blizzard reserved title in the software, granted players a non-exclusive,
limited license, and also imposed transfer restrictions if a player sought to transfer the license
and a variety of use restrictions (e.g., for non-commercial entertainment purposes only and no
(^2037) Id. at 1-11.
(^2038) 991 F.2d 511, 518-19 (9th Cir. 1993).
(^2039) MDY Industries, 2008 U.S. Dist. LEXIS at 10-11.
(^2040) Id. at 12-18
(^2041) Id. at 24-28.
(^2042) Liz McKenzie, “Warcraft Creator Wins $6M Over Software ‘Bot,’” Law360 (Oct. 1, 2008), available as of Oct.
2, 2008 at http://ip.law360.com/articles/71118.
(^2043) 621 F.3d 1102, 1108-09 (9th Cir. 2010).