The Lawbringer: Copyrights and WoW

Welcome to The Lawbringer, WoW.com's weekly tour of the intersection of law and the World of Warcraft. I am a third-year law student acting as your tour guide (and trying not to get run over, myself).

Greetings! After an unintended hiatus (pesky finals to study for), I'm back and ready to start a new theme here at The Lawbringer. For the last couple months, we've been examining issues of contract law as it relates to the End User License Agreement and Terms of Use to which we as players agree. For the next few months, we'll be examining issues of copyright law as they relate to our favorite world ... of Warcraft.

Before we delve too far, though, I want to note that copyright law is a complex field of law with antecedents dating back 400 years. Add in national constitutions, international treaties and the paradigm shifts in technology in the last 50 years, and you end up with a subject that cannot be compressed into a 1,200-word column or three. If I appear to be skipping over your favorite bit, rest assured, I will probably address it at some point. Join me after the break, where we'll examine the nature of copyright and how it covers our favorite game.

Copyright law in the United States begins with Article 1, Section 8, Clause 8 of the Constitution, which empowers the Congress:

I want to note that a specific reason is given for the establishment of these exclusive rights. Under U.S. law, a copyright or patent is granted as part of a grand exchange -- the nation gets inventions, literature and art, and in return the creators get periods of time (17 and 28 years originally, now 20 and life plus 70) to be exclusively rewarded for those works. This right is not, however, any kind of recognition that hard work creates a right or that a creator has any moral claim to the fruits of his creation. This is a utilitarian bargain, pure and simple, and it stands in contrast to the natural law-based copyright laws of other countries.

The scope of copyright is laid out in 17 USC 102 and covers the following when fixed in a tangible medium from which they can be retrieved:

1. literary works

2. musical works and accompanying words

3. dramatic works and accompanying music

4. pantomimes and choreography

5. pictorial, graphical and sculptural works

6. motion pictures and other audiovisual works

7. sound recordings

8. architectural works

Now, the WoW EULA lists many of the protected properties that belong to Blizzard. I'll note how each of these is covered by the copyright statutes:

• computer code -- literary work

• themes -- literary work

• characters -- literary and AV work

• character names -- literary work

• stories -- literary work

• dialog -- literary work

• locations -- graphical work

• artwork -- graphical work

• structural or landscape designs -- graphical work

• animations -- AV work

• sounds -- Musical Work

• musical compositions and recordings -- Musical work

• audio-visual effects -- AV work

• storylines -- literary work

• character likenesses -- graphical work

I could explain the case law behind why each of these comes down the way it does, but that would be boring and repetitive, even for someone interested in this stuff. I do want to address two points -- why the few million ones and zeros of Blizzard's object code are considered a copyright protected "literary work" and why a video game like World of Warcraft, with all the randomness and changes that come from player interaction, is considered "fixed in a tangible medium."

Copyright is intended to protect expression of ideas, not ideas themselves. The story of star-crossed lovers who are drawn together despite their families' feud, marry and resolve that feud is not protectable; the author of such a story can't win a suit against another author for just having those same elements. Only the expression of that idea, peculiar to the author's work, can be protected -- this is why Lion King II doesn't infringe West Side Story, for example. Same idea, clearly different expressions. (Bernstein's > Disney's, IMO.)

Pop quiz: Can you see the inherent problem in this kind of analysis?

If you were thinking, "Where's the line between an idea and an expression?", congratulations! You're smart enough to be a lawyer. That's the problem of this analysis. To return to our previous examples, what if the stories in question both involve Irish parents on the man's side, Jewish parents on the woman's side, and the reconciliation takes place after the lovers marry and have a child? Are the similarities of these two works expressions that are close enough to infringe, or are they just unprotectable ideas? (Just unprotectable ideas -- Nichols v. Universal Pictures Corp.)

So let's move back towards Azeroth. Is a computer program an expression or an idea? After all, computer programs are fundamentally just complex mathematical statements. If e=Mc^2 is a noncopyrightable idea, why would a million lines of code be copyrightable? Well, the answer is the somewhat unsatisfying, "because Congress and the courts say so." The amendments made to the Copyright Act in 1980 added definitions for computer programs to the code, and then a series of court cases firmly established that a computer program's code, even the object code unreadable by normal people, is a copyrightable "literary work." While yes, computer code does consist of many noncopyrightable ideas, the "modicum of creativity" in the arrangement, file structure etc. is sufficient to justify a copyright.

Let's tackle that other question. Clearly each mob, each character, each background and each piece of music is protected on its own merit, but what about the combinations? Each of those things is dynamic, constantly changing. In fact, this dynamism is part of the appeal of video game, particularly multiplayer games. No moment is exactly like any other, between the positions of the sun, the moons, the clouds, the weather, the mobs, the fellow players ... How is this "fixed in a tangible medium"? Again, the answer comes down to, "because the court says so." Atari Games Corp. v. Oman ruled that even though a game is constantly changing, because the code it is based on is in a "fixed medium," the game qualifies for copyright protection.

So where does this leave us? The beginning of any copyright analysis needs to be the copyright status of the work in question. World of Warcraft clearly passes this test. Its code, its story, its objects, its whole world qualifies for copyright protection, and Blizzard has taken the steps necessary to maintain that protection. Having established that WoW is protectable and protected, next week, we'll look at the nature of that protection.

P.S. Some of you may have wondered what happened to the promised column on filing taxes as a gold farmer. The good editors here at WoW.com ruled it was too much law geekery and not enough WoW geekery, a charge to which I had to plea no contest. You can read it here if you're interested in the technicalities of self-employment taxes for unethical, improper and possibly illegal businesses.

P.P.S. It has been "requested" I make a statement on my supposed "conflicts of interest." So I have.

This column is for your entertainment and should not be considered legal advice. If you have a real legal question, contact a real lawyer. If you have questions about law school or suggestions for topics, you can email me at lawbringerjd at aol.com or tweet me @wowlawbringer.