Advanced Copyright Issues on the Internet - Fenwick & West LLP

infringing copies of the game client software. Blizzard sought to hold the defendantcontributorily liable for those infringing copies. 1579The court agreed and granted Blizzard summary judgment against the defendant. Citingthe Ninth Circuit’s decision in MAI Sys. v. Peak Computer, Inc., 1580 the court ruled that copyingof software to RAM constitutes “copying” for purposes of Section 106 of the <strong>Copyright</strong> Act, andthus 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 usingthe software in an unauthorized way. 1581 The court ruled that the provisions in the EULA andthe TOU prohibiting the use of bots and resale of game assets were limitations on the scope ofthe license, not merely separate contractual covenants. The EULA stated the game clientsoftware was distributed solely for use by authorized end users according to the terms of theEULA, and the grant clause in the license was expressly conditioned as being subject to the enduser’s continuing compliance with the EULA. The license also made clear that, although userswere licensed to play WoW and to use the game client software while playing, they were notlicensed to exercise other rights of the copyright holder, such as distributing or modifying thesoftware, thus establishing that the provisions of the license were designed to protect Blizzard’scopyright interests. Thus, when end users used bot software such as Glider to operate the WoWgame client software in violation of the EULA and TOU, they were making unauthorized copiesof the game client software, which infringed Blizzard’s copyright, and for which the defendantwas liable as a copyright infringer. 1582The court rejected the defendant’s argument that the copies of the game client softwaremade by end users while operating the Glider software were authorized by Section 117 of thecopyright statute. The court noted that MAI and at least two other rulings by the Ninth Circuithad held that licensees of a computer program do not “own” their copy and are therefore notentitled to a Section 117 defense. 1583 In October of 2008, the court awarded Blizzard over $6million in damages for copyright infringement. 1584(j)Louis Vuitton v. Akanoc Solutions, Inc.In Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 1585 the defendants providedOSP services that hosted websites through which the plaintiff alleged goods were being sold thatinfringed its trademarks and copyrights. The plaintiff sought to hold the defendantscontributorily and vicariously liable for hosting such websites and the defendants moved for1579 Id. at *1-11.1580 991 F.2d 511, 518-19 (9 th Cir. 1993).1581 MDY Industries, 2008 U.S. Dist. LEXIS at *10-11.1582 Id. at *12-181583 Id. at *24-28.1584 Liz McKenzie, “Warcraft Creator Wins $6M Over Software ‘Bot’” (Oct. 1, 2008), available as of Oct. 2, 2008at http://ip.law360.com/articles/71118.1585 591 F. Supp. 2d 1098 (N.D. Cal. 2008).- 346 -