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The Lawbringer: Scope of copyrights


Welcome to the Lawbringer, WoW.com's weekly look at the intersection of law and the World of Warcraft. I'm a newly minted J.D. acting as your crossing guard.

Greetings from the other side of graduation! The sun is shining, tons of Cataclysm spoilers await and now I don't have to arrange my WoW-ing and writing around my study schedule. Given that, it's time to get back into our examination of copyright law.

Two weeks ago, we looked at what can get a copyright, namely: literary works; musical works and accompanying words; dramatic works and accompanying music; pantomimes and choreography; pictorial, graphical and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. But knowing what can be covered by a copyright doesn't explain what a copyright gives an author.

A copyright is actually a bundle of separate rights:
  1. right to make copies
  2. right to distribute copies
  3. right to create derivative works
  4. right to perform or display
  5. right to anticircumvention of the measures taken to prevent copying
  6. moral rights, including rights of attribution and the right to avoid mutilation


We'll look at these rights one by one, starting from the bottom.

Moral rights

This is a relatively new addition to a standard copyright. Remember two weeks ago when I said that the U.S. Constitution granted the Congress power to establish copyrights, the grant was "[t]o promote the Progress of Science and useful Arts." Copyright laws grew up to prevent the violation of authors' rights, but those rights were part of a utilitarian bargain that benefits the nation just as much as the author. European copyright law works slightly differently, giving authors rights that are not reducible to money and cannot be sold as the other rights on the list are. These rights include the right to anonymous or pseudonymous publication, the right to be attributed and the right to the work's integrity.

Moral rights are protected by the Berne Treaty on Copyright, of which the United States is a signatory. As part of our treaty obligations, the United States was forced to add protection for moral rights. Rights of visual artists are protected by Visual Artists Rights Act, but all other moral right enforcement must be done through laws against unfair competition and other business tort laws.

These moral rights don't affect WoW too much. The game isn't protected as a work of visual art under the terms of the law, and Blizzard doesn't have to worry too much about someone trying to slander it by talking about "Sony's Warcraft" or "Blizzard's Warhammer."

Anticircumvention

This topic will get its own column in a few weeks, but I'll give an overview here. Under the Digital Millennium Copyright Act, a copyright also includes a right to use copy protection technology and a right to not have this technology circumvented. Leaving aside questions about the wisdom of this law, this means that one violates copyright law merely by circumventing the various forms of digital rights management.

This, as you might imagine, is a big issue for Blizzard, as the company uses copy protection encryption on its code and its server-client connection. One of these technologies is a program called Warden, which monitors what programs are running on your computer while you are playing to check for bots and hacks. The infamous botting program Glider actually was modified several times to make it undetectable to Warden, which is why Blizzard countersued MDY under DMCA provisions. More on this later.

Performance and display

A copyright holder has the exclusive right to display or perform his work. After all, the ability to sell copies of say, a movie, is substantially less valuable if that movie is constantly being broadcast. Because of this, public performance is a right of the holder.

Sneaky lawyer alert: what constitutes "public"? Section 101 of the Copyright Act describes four ways one can have a public display/performance:
  1. if the performance occurs at a place open to the public,
  2. if the performance occurs at a place in which a substantial number of person outside the normal circle of a family and its social acquaintances is gathered,
  3. if the performance is transmitted or otherwise communicated to a place open to the public or where a substantial number of persons outside the normal circle of a family and its social acquaintances is gathered, or
  4. if the performance is transmitted or otherwise communicated to the public by means of any device, regardless of whether the public receives it in the same or separate places or receives it at the same or different times.
Bit of a mouthful there, but the fourth is the most likely one to impact on our beloved World of Warcraft. One could argue that any transmission of game footage would qualify, meaning that all those wonderful videos on YouTube.com might actually be copyright infringement. As far as I know, Blizzard has refused to act on this theory. I'll be devoting a future column to examine this issue in detail.

Derivative works

The holders of a copyright have more than rights over their own works; they also have the rights to any work that has been derived from that work. You've probably heard the term "fair use" as applied to copyright; many fair use cases are derivative works that the creators are claiming shouldn't be considered an infringing derivative work.

For World of Warcraft, this means Blizzard has exclusive rights to all novels, comics, soundtracks, characters, settings, plot lines, etc. What does this mean for us? All the derivative works we create -- the fan fic, the machinima, the addons, etc. -- are unlicensed and thus technically infringing. However, Blizzard has chosen to rest on these rights and only go after those who are making money off their infringement. This topic too will get a much longer treatment in the near future.

Distribution

The copyright owner has the right to distribute his work to the public. This right is separate to the right to make copies, though logically these rights are typically licensed together. As an example, imagine an artist who paints nudes that she gives to a boyfriend, under the assumption they're for his eyes only. If he were to then put those paintings up for auction, she could sue him for infringing her right of distribution under copyright law, even if he never made any copies of the paintings.

A distribution right is only the right to distribute to the public, and it ends after the first sale, hence the "first sale doctrine." After we as customers buy a copyrighted product from our local retailer, we then have the right to sell that product to whomever we wish (unlike the above example, wherein giving the painting to the boyfriend was not a public distribution).

What does this mean for software like our favorite game? After we have purchased a copy of a program, we have the right to distribute our copy of the software to whomever we wish. We buy a CD-ROM and some booklets, and we have the right to sell that CD-ROM and the booklets, but that's all the first sale doctrine allows us to distribute.

Copying

Finally, we reach the most important right -- the right to make copies. Traditionally, only the copyright owner or licensee has the right to make copies. Software prompted a change to this law, allowing the purchaser of software to make one archival copy. While important, this right is probably the most self-explanatory.

There's only one problem in applying this right to World of Warcraft -- we are not purchasers of the software. We are licensees, essentially renting our copy of the game and being bound by the terms and conditions thereof. The issues of copyright licensing will be next week's topic.


This column is for entertainment purposes only and should not be considered legal advice. If you have a real legal question, find a real lawyer. For general questions about law or law school, email me at lawbringerjd@aol.com or tweet me @wowlawbringer.


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