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The Glider outcome and copyright law

Mike Schramm

Well, as you may have heard, Blizzard has all but finished off Glider -- pending one more appeal (which doesn't seem likely to win), Glider is getting shut down for good next week. Good news for Blizzard, but not so good for copyfighters? Blizzard used a controversial argument for copyright in its case -- they claimed that by circumventing the ToS, the Glider folks were actually breaking copyright law, and an interest group called Public Knowledge didn't take kindly to that. They argued that a decision for Blizzard would mean that any software developer could then prevent any customer from doing anything they didn't want to do, just by calling it a copyright infrigement. Blizzard responded that "buying" your WoW software was actually "licensing" it, but of course that didn't settle anyone down.

And now, Glider has lost -- so what next?

Tim Lee over at Ars Technica does call the decision "troubling" -- the Judge in the case made a distinction between the "literal elements" of Warcraft (the actual bits on the game disc), and the "non-literal" elements (the gameplay itself), and that Blizzard didn't control access to the "literal elements" (anyone can make copies of the game disc), but that they did control access to the "non-literal elements" (as the Warden program keeps you from using apps like Glider). If it sounds confusing, that's because it is, but the bottom line is this: the decision in this case does basically confirm that Glider circumvented part of Blizzard's copyright, and thus, if taken completely literally, this precedent could mean that anyone who did anything with any software that was against anything in the Terms of Use could be sued under copyright law.

Whew. Of course, we're not done yet -- the case is still moving on to a higher court, and if by some chance it passes appeal there, we could have another outcome. And this precedent is shaky to say the least -- another case could come along and knock that part of Blizzard's argument out (that wasn't the only argument they had against Glider). But despite the fact that Blizzard and many players are cheering that the bots lost, they may have opened up a rift in copyright law that interest groups on the other side may have a little trouble closing.

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