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5-08-2008 @ 4:37PM
Dave,That's wrong. Reproduction and distribution are separate rights, both listed under 17 USC 106. It is a violation of copyright law to make a copy without authorization unless that copy falls under the fair use exception outlined in section 107.A section of a paper I just wrote for a copyright class covered this case (yes, IAAL, or will be soon). Here's a brief summary:Glider is accused of secondary infringement, that is, inducing others to infringe Blizzard's copyrights. No one's really disputing that using Glider is a violation of the TOS; the question is whether breaking the TOS/EULA is copyright infringement. If the users aren't infringing, Glider can't be inducing them to infringe.Running WoW makes a copy of the program in your RAM. The TOS gives you a license to make this copy. The TOS requires that you not use a third party program to start WoW. Blizzard says that using Glider is outside the scope of the license granted, and thus is copyright infringement.Glider, and apparently Public Knowledge, say that copyright law doesn't allow limitations on licenses in this way--a license to copy is a license to copy. Any restrictions you put on *how* you copy it or how you use it are just contract terms, because there's no violation of an exclusive right under 106. This a Big Difference in law. If you break a contract, for the most part the other party can only sue you to comply with the contract or compensate them for their loss (and only for their loss--they're not supposed to get richer than they otherwise would have if you had complied with the contract). This is also the case in copyright law for the most part, but as a preventive measure 17 USC 504 provides for statutory damages, instead of "actual" damages, of $750-$30,000 for *each* work infringed (and this is why people who have thousands of songs on their computer settle with the RIAA).So what we're talking about here, and the reason everyone is up in arms, is that if Blizz wins this argument, they will have the right to sue me for at least $750 if I let my wife log in on my account to check my auctions. They probably won't, but that's a big bargaining chip to hold in disputes with users.If both parties pursue this, my guess is it will go to the Supreme Court. There is a Ninth Circuit case involving Ticketmaster and a Federal Circuit case with a long and boring name that conflict on this point, so the Supreme Court would likely take it up to resolve the difference.
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