Vernor v. Autodesk, Inc., No. C07-1189RAJ (W.D. Wash., Sept. 30, 2009)
Opinion

On September 30, the United States District Court for the Western District of Washington granted, in part, Vernor’s motion for summary judgment against Autodesk.After Autodesk became aware of Vernor’s attempts to sell copies of its copyrighted software, AutoCAD, on eBay, it invoked the takedown provisions of the Digital Millennium Copyright Act, causing Vernor to be barred from selling anything on eBay for a month. Vernor sued, seeking, among other remedies, declaratory judgment that these sales were not in violation of copyright. In granting summary judgment for Vernor, the Court held that a customer who had acquired AutoCAD packages pursuant to Autodesk’s software license agreement (”License”) became an owner of the physical copies of the software with the right to resell the AutoCAD packages under the first sale doctrine (17 USC § 109(a)).

The Court also accepted that the owner was protected from claims of contributory copyright infringement by 17 USC § 117. The Court had previously considered very similar issues in the context of Autodesk’s earlier motion to dismiss. See Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164 (W.D. Wash. 2008)).

A selection of briefs and relevant court documents are available here. The Technology & Marketing Law Blog provides a useful overview and analysis of the case. The outcome was heralded as pro-consumer by the Electronic Frontier Foundation, but Blog Nauseum suggests that the decision is not much of a win for consumers.

In holding as it did, the Court rejected Autodesk’s argument that it merely licensed the AutoCAD packages and remained the owner of the copies of the copyrighted material contained therein. The decision turned on the specific wording of the License and the resolution of two conflicting lines of precedent.

The AutoCAD packages in question were first transferred from Autodesk to Cardwell/Thomas Associates (“CTA”), an architecture firm, pursuant to the License. CTA then transferred the packages to Vernor in a sale of office equipment.  Vernor subsequently attempted to resell the AutoCAD packages on eBay, prompting Autodesk to invoke the “takedown” procedure. Vernor was barred from selling anything on eBay for a month. There was no suggestion that Vernor had used the software himself.

The Court’s determination turned on whether or not Autodesk had transferred ownership of the AutoCAD packages to CTA. If ownership was transferred, CTA and Vernor had first sale rights. The crucial question was therefore whether the terms of the Autodesk License transferred ownership of the software copies included in the AutoCAD packages to CTA, or whether CTA was a mere licensee.

The Court characterized the License as a “hodgepodge of terms” that could support both transfer of ownership and mere license. The fact it was designated a “license” was not determinative. Autodesk expressly retained title to the “Software and accompanying materials” but had no right to regain possession. The use and further transfer of the software was severely restricted. However, Licensees paid a single up-front price, consistent with ownership. Whether these terms were sufficient to transfer ownership required the Court to resolve conflicting precedents.

In United States v. Wise, 550 F.2d 1180 (9th Cir. 1977), an agreement that reserved all rights and title in the copyright holder was found to transfer ownership of the copy when coupled with upfront payment and the “rest of the language” of the agreement, in particular, the fact that the copyright holder had no right to regain possession.

On the other hand, a trio of cases referred to as the “MAI trio” characterized agreements transferring possession of software as mere licenses (MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995); Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006)).

The Court refused to select between precedents on the basis of policy, commenting that courts, unlike Congress, are not suited to render judgments on policy. Rather, the Court applied the principle that it must follow the oldest precedent among conflicting opinions from three-judge Ninth Circuit panels. Accordingly, the case fell to be decided for Vernor on the basis of Wise.

Vernor is one of a number of cases to consider first sale rights in the software context. Because this controversial issue was resolved on the basis of a technical rule of precedent, this decision is unlikely to be the end of the matter. Autodesk may appeal, and the Ninth Circuit is currently hearing several cases raising similar issues (see Electronic Frontier Foundation’s commentary). In the meantime, we can expect that attorneys for software developers will be reviewing the language of their clients’ “licenses” to strengthen the claim that ownership of the copy does not pass to the consumer.

Microsoft, Yahoo, Amazon Join Opposition to Google Settlement

The New York Times reports that Microsoft, Yahoo, and Amazon have joined library associations, nonprofits, and individuals in opposing the Google Books settlement in The Authors Guild v. Google. The settlement, which would allow Google to provide digital versions of millions of books, still requires court approval and remains the subject of a Department of Justice antitrust investigation. The opposition group, tentatively called the Open Book Alliance, will argue to the Department of Justice that the settlement agreement is anticompetitive.

Internet Law Group Brings Suit Against Unidentified Hackers

“John Doe” suits brought against unidentified Eastern European hackers may offer a glimpse of the hackers’ targets and techniques through subpoenas against defrauded banks. However, the banks may challenge the subpoenas in order to protect customer privacy. Unspam Technologies, a group that recently filed suit against bank hackers in the Eastern District of Virginia, hopes to improve bank security and potentially identify the hackers. The New York Times outlines the stakes and key players in the case, Project Honey Pot v. Does.

Mozilla Versus Microsoft in EU Browser Investigation

Ryan Paul at Ars Technica criticizes Mozilla’s complaints regarding Microsoft’s Internet Explorer bundling and default-setting practices. Paul not only argues that many of Mozilla’s complaints “lack substance,” but also claims that the European Union has no business intervening to encourage competition because Mozilla’s Firefox browser has a 22 percent market share “amidst an increasingly competitive browser market.” In contrast, Mitchell Baker of Mozilla argues that the Firefox browser is at a disadvantage because Internet Explorer has a “uniquely privileged position on Windows installations.”

WTO Finds China’s Media Laws Violate International Trade Laws

On August 12, Ars Technica and the New York Times reported that the World Trade Organization ruled against China in a complaint by the United States regarding China’s limitation on imports of songs, movies, and books. The Chinese laws constituting trade violations require that many forms of imported media must be distributed by a single, state-owned company. The laws also limit foreign ownership of Chinese media companies and allow domestic companies to bypass trade censors. Ron Kirk, the US trade representative at the WTO conference in Geneva, said that the “decision promises to level the playing field for American companies working to distribute high-quality entertainment products in China so that legitimate American products can get to market and beat out the pirates.”

Hollywood Group Secures Preliminary Injunction against DVD Copying Software

On August 11, U.S. District Court Judge Marilyn Patel issued a preliminary injunction against RealNetworks, barring the company from selling its RealDVD copying software until a jury can decide the issue, CNET News reports. She stated that RealNetworks cannot use fair use as a defense under the Digital Millennium Copyright Act or the company’s license with the DVD Copy Control Association, but noted that “[i]t may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer.” While the decision is seen as a major victory for the Motion Picture Association of America, the Electronic Frontier Foundations views it as a setback for innovators and consumers.

David Kappos Sworn in as New Director of USPTO

Patently-O reports that on August 13, David Kappos was sworn as Director of the United States Patent and Trademark Office. Kappos addressed USPTO employees at the ceremony, pledging to work on “reducing the backlog of unexamined patent applications, cutting pendency dramatically, working off the mounting appeals backlog, [and] improving re-exam processing.” He also projected his goals to secure more stable financial backing or the USPTO, hoping there will be no need to utilize the Office’s new authority to use trademark funds to pay for patent operations. A video of Kappos’s swearing in ceremony is available on the blog Anticipate This!

By Dmitriy Tishyevich-Edited by Anthony Kammer
Zango, Inc. v. Kaspersky Lab, Inc., June 25, 2009, No. 07-35800.
Slip Opinion

On June 25, the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment for Kaspersky Lab, which distributes software that filters and blocks malicious programs.  The Ninth Circuit held that Kaspersky qualified for civil liability immunity under the Communications Decency Act Sec. 230(c)(2)(B) and rejected Zango’s argument that Sec. 230 immunity was limited only to Internet content providers.

The E-Commerce and Tech Law Blog summarizes the opinion. Eric Goldman provides another summary, agreeing with the outcome, but pointing out some questions the decision left open.

Kaspersky Internet Security is anti-virus software that warns users if the program they are about to download has been classified as malware and gives the user the option of allowing or rejecting the download.  Zango created several downloadable programs, which provided free access to its catalog of online videos, games, music, and tools if the customers agreed to have online ads displayed as they browsed the Internet.  Kaspersky classified Zango’s programs as adware, a type of malware that monitors the users’ Internet usage and causes pop-up ads to appear while the user is online.  In response, Zango filed suit against Kaspersky claiming that its software interfered with customers’ use of Zango’s programs, links, and promotional materials.

The Ninth Circuit affirmed the district court’s holding and held that Kaspersky was entitled to immunity under the Communications Decency Act Sec. 230(c)(2)(B), which grants immunity from civil liability to interactive computer service providers for screening and blocking of offensive material.  The court rejected Zango’s argument that Congress intended to grant immunity under the Communications Decency Act only to Internet content providers.  It determined that Kaspersky met the statute’s definition of an interactive computer service provider, as it made available anti-malware software which enabled users to filter, screen, and allow or disallow particular content.

The court also noted that though the legislative history indicated that Internet content providers were to be granted immunity, this was but one of the purposes of Sec. 230(c), and the plain language of the statute and other legislative history showed that the CDA was also meant to immunize providers of interactive computer services that make filtering software available.  The court further determined that extending immunity to providers of malware filtering software was consistent with Congress’ goals for immunity as articulated in Sec. 230, noting that extending immunity would encourage development of technologies that enable users to exercise control over the information they receive, and would remove disincentives for development of filtering software that permits parents to restrict their children’s access to inappropriate online materials.

Judge Fisher concurred that the CDA provided immunity to Kaspersky as an access software provider.  He noted, however, that a broad grant of immunity could be of concern if providers of blocking software could unilaterally block dissemination of material, because a provider might abuse the immunity by blocking competitors’ content without the user’s knowledge.  He suggested further that unless Sec. 230(c)(2)(B) imposed some implicit good faith requirement, immunity may stretch to include conduct that Congress likely did not intend to protect.

The Sunbelt Blog suggests that Judge Fisher’s concerns are misplaced because given the competitiveness of the anti-malware software market, vendors cannot unilaterally block content that users actually want installed on their computers.

By Tyler Lacey – Edited by Amanda Rice
Diagnostic Systems Corp. v. Symantec Corp., June 5, 2009, No. SACV 06-1211 DOC (ANx) consolidated with No. SACV 07-960 DOC (ANx). Opinion

The United States District Court for the Central District of California granted in part defendant MicroStrategy’s motion requesting a more detailed statement of how its software products infringe on plaintiff Diagnostic Systems Corporation’s (”DSC”) patents, denying only MicroStrategy’s request for monetary sanctions.

The United States District Court for the Central District of California held that DSC must serve a supplemental answer to one of MicroStrategy’s interrogatories that includes more detailed Preliminary Infringement Contentions (”PICs”) within fifteen days. In so holding, the district court called DSC’s current PICs “vague” and “unacceptable,” especially given DSC’s status “as a company whose sole business is to enforce its patents.” MicroStrategy had given DSC’s software consultants copies of the allegedly infringing programs’ source code almost a year prior to the motion, but DSC had still failed “to provide PICs that explain how MicroStrategy’s source code infringes on the claims of DSC.” According to the court, the “bottom line” is that “after a plaintiff-patentee has had a reasonable opportunity to review the source code for the defendant’s accused software product, the patentee’s time for trolling the proverbial waters for a theory of infringement comes to an end.”

Peter Zurba provides an overview of the decision.

DSC originally served MicroStrategy with PICs identifying eight of MicroStrategy’s software products as infringing its patents in April, 2008, and has been reviewing the source code of those products since June, 2008. However, as early as June, 2007, before DSC had obtained the source code, DSC was ordered to provide “definitive” claims so that it could not open “Pandora’s box” and then afterwards decide precisely what infringements to file. Because DSC had not provided sufficiently definitive PICs, Mictrostrategy moved under Federal Rules of Civil Procedure Rules 26 and 37 for DSC to provide more detailed claims. The court describes MicroStrategy’s motion as a strategy designed to force DSC to immediately identify the exact manner in which its products infringe on DSC’s patents pursuant to Rule 26, or be prohibited by Rule 37 from later adding infringements that are not identified in the new PICs. Rule 37(c)(1) provides that “[i]f a party fails to provide information . . . required by Rule 26(a) or 26(e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”

DSC is a wholly-owned subsidiary of Acacia Research Corporation (”Acacia”). Acacia’s website states that its subsidiaries “develop, acquire, and license patented technologies” and boasts that it “controls over 100 patent portfolios covering technologies used in a wide variety of industries.” Law.com’s Xenia P. Kobylarz reported in 2007 that Acacia has had trouble with its reputation and has been derided as a “patent troll,” but its success demonstrates that IP licensing has become a big business. According to Kobylarz, “Acacia’s licensing partners turn over all IP rights to Acacia and receive half of any licensing revenue generated from those patents,” giving it a unique business model that insulates its affiliates from countersuits. The Electronic Frontier Foundation has made Acacia part of its “Patent Busting Project,” listing a “laughably broad patent” and an “[i]nfringement campaign [that] threatens to chill freedom of expression” as two of Acacia’s several “[c]rimes against the public domain.”

This case is significant because it makes the practice of exploratory software patent litigation much more difficult. No longer will a company like DSC be able to easily obtain source code for potentially infringing products and then, after inspecting the otherwise-unavailable code for an extended time, identify specific infringements and bring them before the court. Now, a patent holder must develop a more concrete infringement theory before beginning litigation, or face successful motions like MicroStrategy’s that will force their hand.

Lawsuit Against Brooks Brothers for Falsely Marketing Ties Dismissed

The 271 Patent Blog reports that on May 14, a district court granted Brooks Brothers’ motion to dismiss an action for false marketing. Pro se plaintiff Raymond Stauffer sued Brooks Brothers under section 292 of the Patent Act, which allows damages of “not more than $500″ for each false claim that unpatented items are protected by patent. Under the Act, damages are split between the plaintiff and the government. In Brooks Brothers’ case, the unpatented items were bow ties whose patents expired in 1956.  The district court granted the motion to dismiss based on a lack of “actual or imminent, not conjectural or hypothetical,” injury to the public from Brooks Brothers’ marketing claims.

Red Hat-Led Group Appeals Swiss Government’s Award of No-Bid Microsoft Contract

On May 21, Red Hat announced that a group of 18 technology companies filed an appeal with the Swiss Federal Administration Court. The appeal protests the Swiss government’s award of a three-year contract to Microsoft without a bidding process. eWeek explains that the Swiss Federal Bureau for Building and Logistics may award contracts without a bidding process when there is no adequate alternative available. The Red Hat-led group protested the assertion that no alternatives existed, pointing to many competing open source companies, some already used by the Swiss government. PCWorld discusses the rising strength of alternatives to Microsoft software.

Massachusetts Court Holds that TOS Violations Don’t Establish Probable Cause

The Electronic Frontier Foundation reports that on May 21, the Massachusetts Supreme Court granted defendant Riccardo Calixte’s motion to quash a search warrant that allowed police to seize the Boston College student’s computers and other devices. The court found no probable cause for the warrant, noting that violating a website’s terms of service (”TOS”) is not “obtaining computer services by fraud.” LinuxJournal provides a triumphant, but one-sided account of the decision. The issue of TOS violations recently received widespread media coverage in the Lori Drew “cyber-bullying” case, where a jury found that TOS violations can support criminal charges under the Computer Fraud and Abuse Act.

On November 24th, Judge Presnell presided over a hearing regarding the temporary restraining order put in place by the court on November 6th. The preliminary injunction is significanty more limited than the original TRO, which had prevented CyberSpy from selling its “RemoteSpy” keylogger software entirely.

The new order primarily enjoins CyberSpy from

promoting, selling, or distributing RemoteSpy, or its equivalent, by means of informing or suggesting to customers that it may be, or is intended to be, surreptitiously installed on a computer without the knowledge or consent of the computer’s owner including . . . instructions for disguising the name of the executable file that accomplishes the installation and/or recommendation of the use of a stealth email service for sending the executable file to the remote computer.

The ruling focuses on restricting the methods CyberSpy may use to market or sell their product, but does allow the company to sell RemoteSpy once again.

Previously: District Court Halts Sales of Keylogger Software

[Correction: Originally, this post erroneously indicated Judge Presnell upheld the TRO described below in a November 17th hearing.  In actuality, the TRO was granted on November 6th, and a hearing on the matter occurred on November 24th. The preliminary injunction order resulting from the Nov. 24th hearing is detailed in our case update.]

On November 6th, Judge Gregory Presnell of the United States District Court for the Middle District of Florida granted the Federal Trade Commission’s request for a temporary restraining order prohibiting the sale of CyberSpy Software’s RemoteSpy keylogger software.

The order prohibits CyberSpy from marketing, selling, and providing support for its RemoteSpy software. RemoteSpy is designed to remotely monitor a host computer and record information such as keystrokes, visited websites, and opened documents.  According to the FTC’s press release, CyberSpy allegedly violated Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits unfair or deceptive trade practices.  Specifically, the FTC alleges that CyberSpy violated the Act by marketing and selling “software that could be: (1) deployed remotely by someone other than the owner or authorized user of a computer; (2) installed without the knowledge and consent of the owner or authorized user; and (3) used to surreptitiously collect and disclose personal information.” The complaint also alleges that CyberSpy unfairly disclosed the collected information to its clients. Both CyberSpy and its CEO, Tracer Spence, are listed as defendants in the complaint.

Both the complaint filed by the FTC and the TRO are available at the FTC website.

Ryan Singel of Wired notes that this case marks the first time that the FTC has targeted the amateur spyware market.  He speculates that the case will likely turn on evidence that CyberSpy marketed its product to be used in situations where the victim was unaware of potential monitoring. Joel Hruska of  Ars technica notes that “numerous tutorials and ‘how-to’s’ were included with RemoteSpy, including information on disguising the payload in order to maximize the chance of infection.”  The same article goes on to suggest that the FTC should have been more responsive in filing the complaint, since RemoteSpy has been available to consumers since August 2005.

Graham Cluley points out that keylogger software such as RemoteSpy can be used for a wide variety of purposes, from protective child monitoring to identity theft, and that the final outcome of the CyberSpy case could have serious implications for sellers of “legitimate” spyware.

In granting the TRO, the court issued findings that CyberSpy provided its customers “with instructions and examples for how to disguise the software as an innocuous file in order to send the software to another computer and trick the owner or authorized user of the computer into installing the software,” and that “[o]nce installed on a computer, the owner or authorized user of the computer [could not] readily locate or uninstall RemoteSpy on his own.”   Further, it found that the operation of RemoteSpy would likely cause substantial harm, including “financial harm (including identity theft) and endangering the health and safety of consumers.”  Finally, it determined that there was substantial likelihood that the FTC would succeed in proving that CyberSpy had violated the FTC Act.

In addition to prohibiting CyberSpy from selling or distributing any keylogger, the TRO also enjoined any person from collecting information from already deployed keyloggers, or from misrepresenting keyloggers as innocuous files.  Further, the court enjoined the Defendants from sharing the information collected through its products to others outside of law enforcement.  Finally, the Defendants were ordered to shut down their web site.

Update – 12/5
On November 24th, Judge Presnell presided over a hearing regarding the November 6th TRO. The court issued a preliminary injunction, which is significanty more limited than the original TRO.

The new order primarily enjoys CyberSpy from

promoting, selling, or distributing RemoteSpy, or its equivalent, by means of informing or suggesting to customers that it may be, or is intended to be, surreptitiously installed on a computer without the knowledge or consent of the computer’s owner including. . . instructions for disguising the name of the executable file that accomplishes the installation and/or recommendation of the use of a stealth email service for sending the executable file to the remote computer.

The ruling focuses on restricting the methods CyberSoftware may use to market or sell their product, but does allow the company to sell RemoteSpy once again.

Jacobsen v. Katzer
Federal Circuit, August 13, 2008, No. 2008-1001
Slip Opinion

On August 13, the Federal Circuit ruled that open source license terms can create enforceable copyright conditions.  In Jacobsen v. Katzer, the Federal Circuit addressed the Northern District of California’s rejection of Jacobsen’s motion for preliminary injunction against competitor Matthew Katzer and Kamind Associates, Inc (”Katzer/Kamind”) for infringement of the terms of an open source license (”Artistic License”).  Jacobsen held the copyright to computer programming code, which he made available for free subject to the Artistic License.  According to Jacobsen, Katzer/Kamind incorporated portions of the code into one of their software packages without following the terms of the license. The district court concluded that the Artistic License was an unlimited non-exclusive license.  The district court held the terms of the license created mere covenants, not copyright conditions, and the defendants were thus not liable for copyright infringement.  At most, they had breached a non-exclusive license.  Breach of contract, unlike copyright infringement, creates no presumption of irreparable harm, and the court rejected Jacobsen’s motion for a preliminary injunction. The Federal Circuit reversed and remanded the district court.

The Open Source Initiative provides commentary, stating that “the District Court decision was wrong and wrong in a way that could have been a disaster for open source community.”

On appeal, the Federal Circuit reconsidered whether the terms in the Artistic License created conditions or merely covenants.  Katzer/Kamind’s admission that it had incorporated Jacobsen’s code into its own product established a prima facie case for copyright infringement, so the court examined whether Katzer/Kamind’s use fell outside of the scope of the license.  Katzer/Kamind argued that terms of the license did not create conditions, reasoning that code made available for free could not provide the copyright holder economic rights.

The Federal Circuit rejected this argument.  Although money does not change hands in open source licensing, the court said, the copyright holder enjoys economic benefits, including enhanced reputation and market share.  A copyright holder has an economic interest in requiring users to copy and restate license and attribution information, and license terms are vital to protecting this interest.   Moreover, the Artistic License explicitly described its terms as conditions and used the traditional language of conditions.  The court ruled therefore that the terms were conditions rather than mere covenants, concluding that “[t]he choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.”

At Proskauser Rose’s blog New Media & Technology, Jeff Neuburger suggests that this decision will “greatly bolster the efforts of the open source community to control use of open source software according to the terms set out in the open source licenses.”

Zohar Efroni from Stanford’s Center for Internet and Society also described Jacobsen v Katzer/Kamind as “landmark decision” because it “unequivocally held that free licensing does not mean that [the licensor has received] no economic consideration[.]“

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al.
District Court of Arizona, July 14, 2008, No. CV-06-2555-PHX-DGC
Order (via Justia)

The District Court of Arizona entered a summary judgment motion finding that MDY Industries, LLC (“MDY”), creators of a software program called WoW Glider (“Glider”), were liable for contributory and vicarious copyright infringement because their program loaded a copy of a copyrighted Blizzard Entertainment, Inc. and Vivendi Games, Inc. (collectively, “Blizzard”) game into computer memory on the game-owners’ machines against the terms of the game’s End User License Agreement (“EULA”). As part of this decision, the Court also found that over-the-counter buyers of the computer game were licensees rather than owners and were thus bound by the terms in the EULA.

Judge David Campbell ruled that the EULA created a limited license rather than a sale because the title explicitly uses the word “limited” and because several of the provisions contain explicit restrictions on the use of the game which, when read together, prohibit the use of Glider. As licensees rather than owners of the game, users were only allowed to copy it under circumstances dictated by the EULA and were thus guilty of direct infringement when they used Glider because it loaded the game into the user’s RAM. A line of Ninth Circuit cases had previously held this to be “copying,” an exclusive right of the copyright holder under Section 106 of the Copyright Act. MDY was found to be liable for contributory and vicarious copyright infringement because it materially contributed to users’ direct infringement, profited from it, and declined to exercise its ability to stop Glider users from activities infringing the license.

The motions of both parties can be found here.

Public Knowledge argued that because 17 U.S.C §117 reserves to the computer user the right to make RAM copies to run the program, this construction of the EULA will allow Blizzard to retain rights it has never owned. Their amicus brief can be found here, and and Blizzard’s reply can be found here.

The Patry Copyright Blog notes the dismissal of the DMCA claim with approval but finds the copyright ruling to be wrongly decided and to also be a “chilling extension of control” by copyright holders over their products.

Corynee McSherry of the Electronic Freedom Foundation Blog also disagrees with the copyright ruling and notes other recent district court cases under Ninth Circuit jurisdiction which have come out differently, speculating that there will be an appellate decision on this matter soon.

A Note by Christina Hayes published at 22 Harv. J.L. & Tech. touched on whether Blizzard’s EULA could be enforced to limit users’ copyright fair use rights.

World of Warcraft (“WoW”) is a multiplayer online role-playing game whose copyright is owned by Blizzard. Many copies, though not all, are sold over the counter. To play the game a user must load a copy of the software and then access the online server using an online account for which the user pays a monthly fee. Glider automates some of the tedious game activities so that players progress through the game faster. In the process of carrying out this function Glider loads WoW onto the computer’s RAM.

The Court also ruled that MDY did not violate 17 U.S.C. § 1201(a)(2)(part of the Digital Millennium Copyright Act), which forbids tools that circumvent technological measures that a copyright holder has implemented to control access to its copyrighted work. Since the user does not have to pass through Blizzard’s security devices to gain access to the code, the Court found that Glider’s circumvention of these devices is not a § 1201(a)(2) violation. The Court denied summary judgment and wanted further fact-finding on the question of whether MDY violated this section with respect to “non-literal elements” of the game. Similarly, it denied summary judgment on potential MDY violations of § 1201(b)(1), which focuses on whether a technological measure protects copyright rather than whether it controls access.

The Court also granted summary judgment to Blizzard on a claim of tortious interference, to MDY on Blizzard’s claim of unfair competition, and denied summary judgment to MDY on an unjust enrichment claim.