On December 14, 2010, the Ninth Circuit continued its clarification of copyright law as it relates to the use of software. In an interesting follow-up to September's Vernor v. Autodesk, Inc. decision, the Court of Appeals decided, in MDY Industries, LLC v. Blizzard Entertainment, Inc., that although gamers' use of "bots" to manipulate game-play violated the users' license in the software, the violation was not so tied to copyright as to destroy the user's license and turn the RAM copies on his computer into infringements. As such, the bot's creator could not be liable for contributory infringement. However, the bot's use of mechanisms to evade detection and expulsion by the game did violate the anti-circumvention sections of the Copyright Act, and constituted violation of the Digital Millennium Copyright Act (DMCA) by the bot creator.
In Vernor, the same court was faced with the issue of whether copies of software are typically licensed or sold. There, Vernor bought used copies of software and tried to resell them on eBay. Like most software, the copies Vernor bought contained a license agreement stating that any purchaser was not actually buying a copy of the software, but was being given a nontransferable license to use the software within certain restrictions. So, in the most basic of terms, the court had to determine: when you go to a store, pay, and bring home some software, did you actually buy the copy of the software (which would enable you to resell it pursuant to the "first sale" exception in the Copyright Act), or did you just license it? The Vernor court held that you just licensed it, so you cannot then sell your used copies of software (or the nontransferable license) because that violates the copyright owner's exclusive distribution right.
In Blizzard, otherwise known as the World of Warcraft case, MDY created a "bot" for video game users to build up character experience, virtual money, and so on, without having to actually be at the computer playing the game. It also circumvented Blizzard's detection software put in place to stop bots from being used. In keeping with its Vernor decision, the court held that video game purchasers are licensees, not owners of the software.
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