Okay - I think you are indulging in incredibly sloppy thinking, and although I consider the reasons why it's sloppy very obvious, you keep going back to this over and over. So, obviously you honestly believe that simply accessing another program is a violation of the rights of that license holder.

So I'm going over this point-by-point. The issue is complex, and I'm splitting my post up, and including references.
There are two items here to be considered:

1) The question of copyright: Does Blizzard have any inherent right to keep another program from interacting with their program.
2) The question of the EULA (And TOS): Can (Well, yes according to this ruling, but I'm going to say why I think this is a bad ruling, and why I hope and believe it will be overturned upon review) a license holder prevent their customer from using a third-party program that does *not* violate their IP rights with that program, and if so, can they hold the third party programmer responsible.

§ 106. Exclusive rights in copyrighted works


What this software (Glider) does not do:
1) It does not reproduce, or cause to be reproduced, the copyrighted work of Blizzard. (note: The Judge made a finding of 'contributory infringement' based on the EULA. But neither the program, nor the programmer infringed - the judgement caused the WoW client to infringe, a distinction I will to come back to later)
3) It does not distribute copies of the copyrighted work of Blizzard.
4) It does not cause the copyrighted work of Blizzard to be performed publicly.
5) It does not cause individual images of the copyrighted work of Blizzard to be displayed publically.
6) It does not take sound recordings from Blizzard to be performed publically by means of digital transmission.

This leaves only the 2nd possibility) - that Glider is in some way a derivative work, thus infringing upon Blizzard copyrights as a matter of principle.

Now, I will stipulate for the record, that if someone writes code that alters the code of another program against the wishes of the license holder of that program, that would seem to me to be a violation of the 'derivative works' provision. There may, conceivably, be a fair use defense for allowing this under a specific situation, but I'm not sure what it would be and for all practical purposes I would consider it a violation until proven otherwise.

So Stipulated. However, I have not seen *any* statement that says this software altered Blizzards original code, either on disk, in memory, or during it's execution. It is *aware* of how blizzards code works, and responds based on that, but that's not the same as altering or using the code.

So, if we are talking about a derivative work, we're talking about a much more esoteric definition of derivative work - one in which simply writing code that works with another persons program is defined as a derivative work.

Again, per § 101. Definitions



This is (deliberately) somewhat vague - this is one of the few areas where the law has been specifically designed to give the courts a lot of latitude and discretion to make decisions on a case by case basis. I'm okay with this myself - I'm not a letter of the law kind of person, and there are a lot of factors.

But 'Based on' another work has never, in any context, simply meant that it interacts with another program, or even uses the features of another program - if that were the case, you would, quite literally, require a license from Microsoft in order to write software that uses any windows library, even including things like the file browser. It is important to note that the 'intent' is irrelevant - if I make a work that I 'intend' to allow other people to use, unless I've licensed it to them with something irrevokable like the GPL or the creative commons licenses, it would still be *illegal* for you to use it without my explicit permission. If you are using it legally in the first place, then I don't have (Barring certain moral rights that come in via the Berne Convention) any power to enforce *how* you use it under copyright.

So I think any attempt to include interacting with another program in the definition of "Derivative Work" is a real stretch - I could make an argument for say a Mod being derivative, but even that is a reach, since, if you think about it, if writing (Original obviously - yeah *my* mod is a derivative work - it's just the Stardock XML files, slightly modified) files to be used within a game counts as derivative work, then saving your story in a Microsoft Word proprietary format would count as derivative work. And all of those are a *lot* closer to the definition of "Derivative" than Glider is to Blizzards game.

So this belief that a program is illegal or beholden to the original copyright holder *simply* because it is used in conjunction with another program is simply doesn't seem, to me, to stand up to scrutiny at all.

This leaves the second argument, the EULA and the TOS.

There are enormous problems with these being utilized to stop glider, because these fall under Contract Law, a pretty specific and well understood area. Contract Law under the U.S. (save Lousiana) falls under the Uniform Comercial Code, which requires pretty stringent standards for a contract to be formed. Unlike Copyright law, it's pretty cut and dried - I am egotistical enough to believe I have a good understanding of copyright law, but I'm an educated layman. UCC otoh is a subject I aced - I *know* I have it down pretty well.

First of all, only four jurisdictions actually recognize EULA as enforcable contracts, two because of court decisions (7th and 8th districts - I, sadly, am in the seventh) and two as a matter of law (Maryland and Virginia, which signed on to UCITA). Most other jurisdictions have recognized the basic notion that an EULA fails to meet the basic standards of a contract. In all honesty, since they *do* fails to meet the basic standards of a contract, I think this will eventually become the norm, but the reason it's relevant here is because the Ninth circuit has, until now, *not* recognized the EULA as an enforcable contract.

Which is important, because the judge is claiming 'contributory infringement' because, in causing the EULA to be violated and ending the license, he is therefore contributing to his *clients* violating copyright, when they load their now unlicensed copy into memory and run it.

Now, in the 7th or 8th circuit, I fully believe this would stand up to appeal. But - in the ninth circuit, when you buy your software you own the software (with the usual copyright limitations, but no more or less than that) unless you are specifically buying a license giving you rights above and beyond those typical to copyright.

Now, that part is worth noting - because the case that he uses to say that you're not the owner of your software are cases where people where doing things that would *not* be legal normally without licenses. The Sheriff's department bought 4,000 licenses, and installed 6,000 copies - well, *yes* that's a license issue - it has never been legal for me to use Galactic Civilization on 6,000 computers!!! Well, not if they're not all in my house anyway - {G}. So based on *that* he's saying that the concept of owner under § 117. Limitations on exclusive rights: Computer programs means the original owner, and *you* are a licensee.

There are three problems with that, two of them major.
1) This doesn't match ninth circuit precedent - but precedent is overturned all the time at this level. I've already said I think this will be overturned, so obviously I'm okay with that.
2) Click on the link and read it again. The name of the statute itself - "Limitations on exclusive rights". If you are not the owner of a program, why does the owner of a program need for there to be a limitation on the exclusive right of the owner, in order to copy the program, which is an exclusive right . . . of the owner? That's what the Judge said here - that the owner referred to in a limitation of the exclusive rights of the copyright owner was . . .the copyright owner. That doesn't even make *sense*.
3) But you agreed to the EULA when you bought the box?! There's a problem with this here - there is a provision in the UCC for standard Boiler plate contracts, and it's important. Boilerplate contracts are enforcable - between 'merchants'.


You and I are not, for the purposes of this conversation, merchants. We are consumers - and consumers are *specifically* excepted from these kind of licenses under the UCC. When I order 4,000 licenses for a department, I'm a merchant - when I order one copy for personal use, I'm a consumer.

So, there are three mistakes in this decision, and the judge *had* to commit all three of them to come out with a judgement of contributory infringement - and it wasn't even advanced by Blizzard. He came up with this ON HIS OWN!

So - the words 'activist judge' get thrown around a lot, all too often it translates as "Judge I don't Agree With", but I really don't think that's the case here. The judge went to a *LOT* of work to come up with this decision, and work backwards to rationalize it, and I think if the programmer appeals there is a *very* good chance of this being overturned.

Jonnan

All this debate and hypothesis is cute...as the Law [as always] tries to catch up with 'real life'.

The 'Law isn't an ass'...it's simply not up to date.  In the meantime closet-thinkers continue to think themselves into a pickle about what semantics apply and how to interpret and live with anacronysms [such as Hotels still required to be able to stable your HORSE].

Give it time...the 'law makers' will eventually get their heads out of their collective arses and legislate.

As far as the Blizzard/bot issue goes...it's plain as day that Blizzard and their customers are being 'damaged' by the use of a bot program.

The phrase 'unfair advantage' is self-explanatory.

The rest is chin-wagging for the sake of working up a breeze....

Sorry but I don't want ot give legislators any more time to bend me over.  I don't like it!

I have an unfair advantage over you in logic. You should sue me on the grounds that you're damaging your reputation by posting.

An after market performance increase for your automobile gives you an unfair advantage over the manufacturers other customers! Obviously automobile manufacturers should sue all after market manufacturers for damaging them and their and customers.

If, and only if the bot itself is illegal, can they in any way hold the designer accountable. Otherwise he's no more responsible for his customers violation of their terms of service than a slim jim manufacturer is for car thieves using their legitimate locksmith tool to steal cars.

The customer is the one liable for violating their own service agreements. Working at Stardock, you should be very worried about such an idiotic precedent as some of the utility software your company designs can be used to violate EULA's. Any program that makes the copying of information possible falls under such idiotic precedent, everyone wave to the entire information age if that were actually applied equally.

Intellectual dishonesty is not becoming, and you can't be stupid enough for it to be anything else or you wouldn't be employed.

I don't think the law is out of date on this one though - I think the judge made a bad decision and I hope to hell it's overturned because it's a lousy precedent, but the actual law is pretty clear.

"Unfair advantage" really *isn't* self explanatory because, however a big a dick cheaters and those who cater to cheater might be, there's no legal basis for suing him. Would you consider it worth suing him if he taught you the 'trick' to getting a pinball game to keep giving you new balls? There is a quantitative difference obviously, but not a qualitative one.

Now, if a law is passed making it illegal to cater to cheaters in a gaming arena, narrowly tailored - then go for it. I think it's a bad idea, but I'm not so attached to that opinion that I couldn't take a wait and see approach to it.

But this *is* judicial activism - I concede, I spent a ridiculous amount of time researching everything specifically to make sure I was actually right and could give the reasons why and the links to back it up, but at the end of the day - he was working really hard to get a guilty verdict out of this. Maybe the Judge is a WoW junkie himself and just wanted to shut this program down, but if not, then he was going to a *lot* of work to get a guilty verdict that overturns key consumer protections - I think it's reasonable to have a certain degree of paranoia as to why it was worth that much effort.

Jonnan

Who gives a toss about 'legal basis for suing' other than armchair theorists and mass debaters?

The 'advantage' is tangible and its 'unfairness' is still self-evident in spite of arguments purporting to be to the contrary.

If a human is playing against a machine...and the intent is that the game is supposed to be played against/between humans then not only is the machine out of place...so is its advantage [if any].

OK....so one end of this is debating a reality of whether Blizzard has been fucked over by this twit...while the other end is debating whether a judge should define a transgression as being  all about copyright...or not.

Hopefully the legal profession [or whatever it's called in the US] can cure their inadequacies on the one hand....and this bot maker/seller can have his nostrils slit with a cease and desist on the other.

He is fucking another person's product/property....about as cleverly as those arseholes who call themselves 'grafittists'.

It's only 'art' when [if] you get away with it.

Well i cannot argue about US Law since i am neither are lawyer nor a inhabtiant of the usa.

But as far as i understood the article the bot program itself copied files of the wow program into the ram.



So it DID reproduce copyright protected material.

I have no idea in which quantity or quality it does so.

Also i dont argue that this may be a bad ruling.

Still i think that the dev of the bot program should be held responsible for creating a program that is *exclusivly*(since you cannot even use it in any other way) used to gain an unfair advantages in an competive pay to play game.

Just like if someone created a computer virus, he is not innocent because he did not installed it on a computer himself but sold it to someone else who used it.

And no, you cannot compare mmorpgs to cars or bots to toolkits(which do have a legal use).

I would disagree with you on this point. Just because something is in a contract does not make it legal nor binding. You can disregard portions of a contract that you consider Illegal or non binding. Just make sure your willing to pay the price if you are wrong.

I offer as evidence for this the fact that many contracts contain a clause that states should any portion of a contract be determined to be illegal or non binding then the remander of thecontract would remain on force. So, if my statement were not correct then whay would they need to place a statement concerning that issue in a contract?

Windows copies programs in part or whole. Every time you move a file, it copies it. Temporary copies have been legally protected for a long time because they are a necessary function of every day use, this ruling throws that out.

Besides, your "copyright infringement" while using the bot is being attributed to the bot maker. Blizzard didn't sue the users. The designer has been held accountable for the copying done by his product users.

This unfair advantage stuff is bullshit too. You are effectively playing against a computer in WOW, leveling is not a competition against the other players. Your lack of reason implies that by playing more than average, someone is given an advantage over the other players. It's a joke, an argument not even worthy of the straw man label.

The purpose of back burning is to burn up the fuel before the big fire arrives. He's not doing anything equivalent, so your extension of the metaphor does not apply. Unless you can demonstrate that some equivalent of back burning is being done, my first metaphor still stands.



Talking about logical fallacies - you are simply asserting my statement is naive to apply to the situation without justification. You should attempt to demonstrate why my attempt to apply it to the situation is fallacious.

In the meantime, I will further explain my statement:


-By pirating the software, you have created another pirate. Assuming the person normally does not pirate, this leads to a small increase in the number of pirates.

-This isn't the first time I've seen this fallacious "logic" applied. In fact, is is a popular form of reasoning. There are, as far as I know, many people who use this form of reasoning.

-While one person may not seem like a lot, if many other people follow the same bad reasoning, then it all adds up to a major problem. This is how most types of crimes are, as far as I know. The vast majority of criminals think they're being "reasonable."



Correct.



Justification by example is valid when the original statement asserts that something is always the case. For example, if the statement is made that "all iPods are white," you can prove the statement is false by demonstrating that some iPods are not white.

Therefore, justification by example is sometimes valid.

Remember: A fallacy simply means that something can be false; it does not prove that something is false.

When I claim that "two wrongs don't make a right," I am asserting that if one person is engaging in wrongful behavior, it does not follow that if another person engages in the behavior that the behavior is justified.



It is still considered wrongful. The principle of wrongful behavior considers



This can be debated.

The generally accepted moral principles, especially in the USA, are:
-Life
-Liberty
-Pursuit of happiness (or sometimes ownership of property)

These are generally considered to be the basic rights of all humans. In addition, there are usually some accepted rules in case there are conflicts between the rights: It is generally accepted that you can't violate somebody else's rights, and it's generally accepted that Life is more important than Liberty, and Liberty is more important than Pursuit of happiness/property.

These principles are vague enough that they can cover a wide variety of actions. Usually religions and governments attempt to create more specific formulations of these basic principles. I know of very few people who think that rightfulness stops at just life and property - it is indeed true that many people extend the principles to lying, cheating, stealing, and other actions.

In addition to these principles, the following is also true:
-Most religions have their own moral principles.
-Most nations have their own laws and codes.

Lying is generally considered a wrong in nearly all forms of moral value systems: It could be considered a violation of the pursuit of happiness, it's usually considered wrong in most religions, and lying under oath is considered a serious offense in a court of law.

I would therefore, claim that moral principles do not stop at the protection of life and property, and that they can indeed be extended to other actions.

In nearly all cases, however, the wrongdoings are considered separately, and the act of one individual is not considered to be tied with the act of another individual. It is entirely possible for more than one individual to commit a wrongful act; there is nothing forbidding it.



Oh? By your reasoning, EA is okay as long as they don't damage you or your property. You would be holding them to a double standard.

Well, *I* do - because I think this is a bad decision that's going to end up biting consumers in the backside. It took *work* for the judge to misinterpret the law this badly, and that, to me, indicates there is an ideological thing going on beneath the surface somewhere.

When Ideologues are sure they're not doing anything wrong, they tend to be open about what they're trying to do - when they try to hide stuff behind a facade, then they're pretty sure that people wouldn't agree if they thought it through.

So, I think *you* are going to care down the line just what you lost with this at some point.


No one here has argued that it's 'Fair'. I wouldn't even argue that 'Life is unfair, get over it' - it's cheating, everyone here knows it's cheating. I think the guy is kinda scuzzy myself.

Do you *want* to live in a world where 'kinda scuzzy' is a valid legal term for a lawsuit? "Ladies and Gentleman of the Jury - What you need to decide is whether a 'Reasonable Man' would find my client scuzzy, and I say a reasonable man would not."

There are neither civil nor criminal 'scuzziness' penalties, and the law doesn't match up for this case.


The problem here is that - no, he's not.

He has not *touched* Blizzards property. If he had, it would be *direct* copyright infringement, not *contributory* infringement.

Let's be clear - when you say this is a good ruling, you are arguing that a company can withdraw your legal right to use their software, based on other actions that you do that are themselves *legal*.

If there had been no EULA, then everything would have been legal, even with this decision. Nothing in this decision says that what glider did was illegal.

This decision says that, point by point:
1) Blizzards customer paid for Blizzard software.

True

2) Blizzards EULA says that their customers are not allowed to use this *legal* program.

This is false, because as consumers (not merchants) Blizzards customers are specifically not bound by this kind of "industry Standard" aggreement under the Uniform Commercial Code.

3) In using this program, they violate the EULA, which ends the license for the software they paid for.

This is false because the Copyright acts specifically exempts 'owners' of software from requiring a license to use the software by copying it into the memory of the computer. It is obvious from the context of the statute that this refers to consumers, because *if* it referred to copyright owners, it would be pointless.

4) The customer used Blizzard Software *anyway*, thereby infringing upon Blizzards copyright.

This would be true IN THIS CASE, if and only if both steps two *and* step three were true!

5) By selling a program whose use, while itself legal, violated the EULA, MDY *contributed* to the violation of Blizzards exclusive copyrights.

THIS IS IMPORTANT! If the customer has infringed upon blizzards copyright, then this is true. It would be true if, for instance, the customer were using software that was sold for the purpose of forging license keys for a program so the customer could use it illegally, or any of a dozen other ways that someone *could* actually violate blizzards copyright. It just doesn't apply here because for the customer to be violating Blizzards copyright, Step four must be true, which requires *both* step two *and* step three to be true.

6) By Contributing to this infringement, MDY is liable for all profits plus punitive damages.

I'm fine with this - if he *had* contributed to infringing Blizzards IP, he would owe these damages.

Lets make this clear:

If you accept this decision as good legal decisionmaking you are accepting that, in the ninth circuit:

A) If you accept an End User License Agreement when installing software, you are completely bound to not do any *otherwise legal action* that the EULA forbids.

If Microsoft puts a paragraph in Words that says you are not allowed to criticize Microsoft, and you use Word, they can sue *you* (for infringement) and *the place you criticized them at* (for contributory infringement). If you use free software on the internet, and it says you are bound to not contribute to the Republican Party, that is a valid interpretation of this decision, and they can sue the GOP for punitive damages.

Would they win? Probably not - this will have to be pared back at some point, but how that's going to happen is anyone guess if this decision stands for the moment. Will you be allowed to do other things, but not use prescribed software? Will you not be allowed to use software that interacts with the original program? Will the whole thing be overturned? The point is that Glider, in and of itself, is perfectly legal - this decision *requires* the fact that Blizzards customers used Glider in contravention of the EULA.

Any software you have *ever* used that has a license that does not *specifically* include the right to copy the software from hard disk to memory, means the copyright owner of that software can sue *you*. Legally. Because you don't own the software, you only have a license for it, despite the *specific* fact that the copyright act allows you to do so.

Part A) could be argued out - UCC (Like all the 'Uniform' Codes) actually varies from state to state depending on the exact language the state legislature adopted - it's possible a state might not have adopted the consumer protections and so on. Part ? That's just dumb.

Cobra, you're a tard.

Maybe if you read entire posts and kept them in context, you'd be able to respond to ideas instead of breaking them into individual sentences and commenting separately. Engineering something to argue against by dissecting posts indicates that you've lost, know you've lost, and can't accept it.

There is no second wrong when you violate an illegal licensing agreement that defrauds you of your purchase. EULA's are only binding in magical fairy land where idiots with no fucking brain are making unjust rulings and fucking us over. EULA's that defraud you of your purchase aren't legally binding even then. EA is held to no double standard by me, the software industry is being afforded one by the government in the basis for this farce of a ruling. I've also clearly stated on numerous occasions that I am not a pirate, only considered one by unscrupulous software companies who's illegal licenses I'm ignoring.

Stop being a shit and practice a little reading comprehension. Honesty would be nice too, next time quote the fucking smiley face at the end of my obvious and indicated humorous statement.

LOL! That's the worst personal attack I've seen yet. Maybe I should frame it and put it on a wall .

The fact that you're resorting to personal attacks and name calling tells me plenty about how this argument is going.

. . . and if you feel my style of argument is taking something out of context, feel free to point it out and restate the thesis of your argument.



The EULA isn't legally binding, but copyright law is. Without the EULA you can't create copies, period. Without the EULA, all you have is a nice coaster for your coffee because you can't install the software because that's copying it.

If you take out the EULA as legally binding, what you have left is a product that is even more useless to you, because you're not allowed to copy it at all.



All this over a smiley face? Wow. Relax, it wasn't an intentional omission. The lack of copying the smiley face is simply because of how my browser handles copy and paste operations. It's rather incapable of copying a graphic into a text field.

Seriously, though, relax a bit. There's no reason to be angry at me, I'm just presenting my personal opinions. I know I'm not a lawyer, and I know you aren't either, so we're both a bit ignorant about how the law works.

In any case, it did appear you were trying to use your sarcasm as some sort of argument, because you followed it up with the second sentence which stated that the "other" statement was somehow absurd, which weakly implies your first statement, although it was intended sarcastically, was somehow supposed to be some sort of argument. I apologize if I had misunderstood the connection between your two sentences.