Advanced Copyright Law on the Internet

use in cyber cafes and computer gaming centers). Accordingly, WoW players were licensees,
not owners, of their copy of the software and therefore did not have rights under Section 117.^2044

The Ninth Circuit then turned to whether the prohibition on the use of bots and cheats
was a contractual covenant or a condition on the license. Section 4(B) of the TOU provided:

You agree that you will not ... (ii) create or use cheats, bots, “mods,” and/or

hacks, or any other third-party software designed to modify the World of Warcraft

experience; or (iii) use any third-part software that intercepts, “mines,” or

otherwise collects information from or through the Program or Service.^2045

The court noted that, wherever possible, equity construes ambiguous contract provisions as
covenants rather than conditions. The court found that TOU sections 4(B)(ii) and (iii)’s
prohibitions against bots and unauthorized third-party software were covenants rather than
copyright-enforceable conditions. Nothing in those provisions conditioned Blizzard’s grant of a
limited license on players’ compliance with the restrictions in TOU Section 4(B).^2046

The court further noted that, although one can be liable for copyright infringement by
exceeding the scope of a granted license, the potential for infringement exists only where the
licensee’s action exceeds the license’s scope in a manner that implicates one of the licensor’s
exclusive statutory copyright rights, such as unlawful reproduction or distribution. Although a
Glider user violated the anti-bot covenants with Blizzard, the user did not thereby commit
copyright infringement because Glider did not infringe any of Blizzard’s exclusive rights. For
instance, the use did not alter or copy WoW software.^2047

Were we to hold otherwise, Blizzard – or any software copyright holder – could

designate any disfavored conduct during software use as copyright infringement,

by purporting to condition the license on the player’s abstention from the

disfavored conduct. The rationale would be that because the conduct occurs

while the player’s computer is copying the software code into RAM in order for it

to run, the violation is copyright infringement. This would allow software

copyright owners far greater rights than Congress has generally conferred on

copyright owners.^2048

Accordingly, the Ninth Circuit held “that for a licensee’s violation of a contract to
constitute copyright infringement, there must be a nexus between the condition and the licensor’s

(^2044) MDY Industries, LLC v. Blizzard Entertainment, Inc., 2011 U.S. App. LEXIS 3428 at 12-14 (9th Cir. Feb. 17,
2011).
(^2045) Id. at 11.
(^2046) Id. at 16-17.
(^2047) Id. at
(^2048) Id. at *20.